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![Now as to the dischargeof the functions of Budget Officer III.Whilepetitioner was appointed in
an actingcapacity on August 21, 1962,respondent Abeleda assumed such position with a permanent
status earlier,namely,on July 1, 1962.The right to the promotion then had been earned by
respondent Abeleda. There was precisely compliancewith,not deviation from, the applicable
statutory provision,with the appointment extended to him by respondent Secretary of Educati on.
There is this further point to consider.Referring to the very same section, this Court, in Pilar v.
Secretary of Public Works and Communications, 5 speakingthrough JusticeDizon stressed that "the
appointingpower enjoys sufficientdiscretion to select and appointemployees on the basis of their
fitness to perform the duties and assumethe responsibilities of the position to be filled .. . ." Passing
on the power of the Commission on Elections to appointelection registrars,this Courtin Amponin v.
Commission on Elections, 6 the opinion beingpenned by Justice Castro,could fitly summarizethe law
thus: "Finally,consideringthatthe power to appointis in essence discretionary,and that there is here
absent a showingthat in the exerciseof the right of choicethe [Commission on Elections] abused its
discretion,we will not even attempt to substituteour own discretion for that exercised by [it]."
It would seem fairly obvious then that the lawdoes not imposea rigid or mechanisti c formula
on the appointingpower, compliancewith which is inexorableand a deviation therefrom fatal.Far
from it. If there be adherence to the concept that public officeis a public trust,as there ought to be,
the criterion should bewhat public welfaredemands, what satisfies publicinterest.For itis axiomatic
that public needs could best be attended to by officials,aboutwhose competency and ability there is
no question. To that overmastering requirement, personal ambition mustof necessity yield.
Discretion if not plenary,at leastsufficient,should thus be granted to those entrusted with the
responsibility of administeringtheofficers concerned, primarily thedepartment heads. They are in
the most favorableposition to determine who can best fulfill the functions of the office thus vacated.
Unless,therefore, the lawspeaks in the most mandatory and peremptory tone, consideringall the
circumstances,there should be, as there has been, full recognition of the wide scope of such
discretionary authority.Happily,there is nothingin the Civil ServiceAct, which is fittingly concerned
with protecting the rights of those in the career service,that, rightly construed, callsfor a different
conclusion.Itis well worth repeating that the broad authority of a department head appears
indisputable.Such is the policy of the law,a policy reflected with fidelity in the decisions of this Court.
WHEREFORE, the judgment of the lower court is reversed and the petition
for certiorari and mandamusdenied. With costs againstpetitioner.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J., is on leave.
Footnotes
1Section 23 of Republic Act No. 2260.
2Section 23, Republic Act No. 2260.
3Paragraph 2,Stipulation of Facts.
4Brief for respondents-appellants,p.26 and stipulation of facts.
5L-21039,February 18, 1967.
6L-27420,September 29, 1967.
G.R. No. L-17745 October 31, 1963
ANTONIO VILLANUEVA, petitioner,
vs.
FELIX BALALLO, respondent.
Luis Bello, Jr. for petitioner.
Buenaventura Martinez for respondent.
CONCEPCION, J.:
This is an appeal froma decision of the Court of FirstInstanceof Il ocos Sur involvingpurely questions
of law.
The main facts are set forth in said decision,fromwhich we quote:
On November 24, 1959,14 days after the general elections of November 10, 1959,Inocencio
Espiritu,the chief of policeof the municipality of Santa,Ilocos Sur,resigned effective at the
closeof officehours on that day for the reason that he wanted to seek another job (Exh. E).
Jose Burgonio, the incumbent mayor then on December 28,1959, three days before his term
expired on December 31, 1959 extended an appointment to the petitioner Antonio
Villanueva as chief of policeof Santa, Ilocos Sur (Exh. A). On the same date, the provincial
treasurer of Ilocos Sur as deputy of the Commissioner of Civil Serviceand pursuantto the
provision of Republic Act No. 2260 approved the appointment.
On December 30, 1959,the petitioner Antonio Villanueva took his oath of officeas chief of
policeof Santa,Ilocos Sur before the then mayor Jose Burgonio (Exh. 1). It also appears that
the appointee Antonio Villanueva isa civil serviceeligiblehavingpassed the examination for
patrolman (qualifying) on October 2, 1937 with a ratingof 86.5 per cent (Exh. J).
On January 5, 1960 Jesus R. Bueno, newly elected mayor of Santa, Ilocos Sur,atthe election
of November 10, 1959, extended an appointment to Atty. Felix Balallo for thesame position
of chief of police"viceMr. Inocencio Espiritu,resigned"(Exh. 2). The record shows that Atty.](https://image.slidesharecdn.com/103856295-cases-law-on-pub-off-with-election-law-150908180039-lva1-app6891/85/103856295-cases-law-on-pub-off-with-election-law-19-320.jpg)
![question, but also becauseitwould deny the Mayor of Manila a chanceto ascertain for himself in the
firstinstance,through his assistants,thelegal aspects of matters or problems brought before him.
For these reasons,appellee's admission to the bar, in relation to the position of Senior Technical
Assistantin the Officeof the Mayor,should be considered as equivalentto firstgradeeligibility under
the provisionsof Republic Act 1080.
It is next argued by the appellants thatthe appointment of Ramon V. Mitra as Senior Technical
Assistantin the Officeof the Mayor of Manila is in violation of the "certification requirement" of the
Civil ServiceLaw, relyingupon the provisionsof Section 23, Republic Act No. 2260:
. . . if the vacancy is notfilled by promotion as provided herein, then the same shall be
filled by transfer of present employees in the government service, by reinstatement, by
reemployment of persons separated through reduction in force, or by certification from
appropriateregisters of eligibles in accordancewith rules promulgated in pursuanceof this
Act.
It is apparentfrom the foregoing provision of the Civil ServiceLaw that prior certification of
eligibles isrequired only if a position is notfilled by promotion, by transfer of persons already in the
government service, and by reinstatement or reemployment of persons separated from the service
through reduction in force. In the caseat bar,it was shown duringthe trial thatthe appointee was
formerly employed in the Department of Foreign Affairs and the Central Bank of the Philippines.
Obviously,therefore, the appointment was a reinstatement, and there was no necessity of obtaining
prior certification of eligibles fromthe Civil ServiceCommission.
Appellants further maintain that the appelleein this case,had not exhausted administrative
remedies, for appeal from the order of the Commissioner of Civil Serviceto the President was yet
available,and itwas error on the part of the Court of FirstInstanceof Manila to entertain the
premature action instituted againstthem. We find no merit in this argument. It has been repeatedly
held that the principlerequiringthe previous exhaustion of administrativeremedies is not applicable
where the question in dispute is purely a legal one (Tapales vs.The President & Board of Regents of
the U.P., L-17523, March 30,1963), where the controverted actis patently illegal or was performed
without jurisdiction or in excess of jurisdiction (Mangubatvs.Osmeña, L-12837, April 30,1959),
where the respondent is a department secretary whose acts as an alter ego of the President bear the
implied or assumed approval of the latter (MarinduqueIron Mines Agents, Inc. vs.Secretary of Public
Works,G.R. No. L-15982,May 31, 1963), or where there are circumstances indicatingtheurgency of
judicial intervention (Alzate vs. Aldaba,L-14407, February 29, 1960; Demaisip vs.Court of Appeals,L-
13000,September 29, 1959).Similarly,when, as in this case,in terminating the services of the
appellee, the Commissioner of Civil Serviceacted summarily withoutany semblanceof compliance,or
even an attempt to comply with the elementary rules of due process,when the order is immediately
executed and petitioner was immediately removed from office, then appeal was not a plain,speedy
and adequate remedy in the ordinary courseof law(Fernandez, et al.vs. Cuneta, et al.,G.R. No. L-
14392,May 30, 1960),and the employee adversely affected may forthwith seek the protection of the
courts.Moreover, appellantCommissioner of Civil Servicemaintainsthatin terminatingthe services
of the appellee, he was not actingin the exercise of his power to imposedisciplinary measures to
erringsubordinateofficers and employees which is subjectto review by the Civil ServiceBoard of
Appeals and the President, but in pursuanceof his power to approveor disapproveappointments,in
the exerciseof which latter function, his jurisdiction isexclusive(Sec.16 [h], Republic Act 2260),
which all the more renders the claimof non-exhaustion of administrativeremedies in this case
untenable (Billy Millares vs.Abelardo Subido,et al.,L-23281, August 10, 1967).
Regarding the holdingof the lower courtthat the Commissioner of Civil Servicehad no power to
cancel the appointment of the appellee,the appellants arguethat said Commissioner had power to
do so because the appointment in question was null and void from the beginning,and that in
terminating the services of the appellee, he was merely enforcing the provisionsof the Civil Service
Law which should not be construed as a removal of the appointee from office.In justifyinghis act,
relianceis madeby the Commissioner of Civil Serviceupon Section 16 of Republic Act No. 2260,
otherwise known as the Civil ServiceAct of 1959,and Section 693 of the Revised AdministrativeCode,
to wit:
Sec. 16. Powers and duties of the Commissioner of Civil Service. — It shall beamong the
powers and duties of the Commissioner of Civil Service:
(f) To make investigations and special reports upon all matters relatingto the
enforcement of the Civil ServiceLawand rules;to inspectand auditthe agencies' personnel
work programs to determine compliancewith the Civil ServiceLaw, rules,standards and
other requirements; and to take corrective measures when unsatisfactory situations are
found; (Republic Act No. 2260) [Emphasis Ours]
Sec. 693. Opinion of the Commissioner of Civil Service on Controverted Questions
Related to the Service. — A disbursingofficer,the head of any department, bureau, or office,
or the Auditor General, may apply for, and the Commissioner of Civil Serviceshall render,a
decision upon any question as to whether a position is in the classified or in the unclassified
civil service,or whether the appointment of any person to a classified position has been
made in accordancewith law,which decision,when rendered, shall befinal unless reversed
by the President of the Philippines on appeal.(Revised AdministrativeCode.)
There is no sense in denying that the Commissioner of Civil Servicepossesses amplepowers to
review appointments made to positions in thecivil service,and to take correctivemeasures when
unsatisfactory situations arefound to existunder the above-quoted provisionsof the law.It is also
laudablethatthe Commissioner of Civil Servicesees to itthat the provisionsof the Civil ServiceLaw
are properly enforced. However, the power to take corrective measures should be exercised with
caution.
It may be stated as a general rulethat an appointment once made is irrevocableand not subject
to reconsideration.This viewrepresents the great weight of authority (note found at page 135
American Law Reports, supported by innumerabledecisions).The ruleis qualified,however, where](https://image.slidesharecdn.com/103856295-cases-law-on-pub-off-with-election-law-150908180039-lva1-app6891/85/103856295-cases-law-on-pub-off-with-election-law-26-320.jpg)
![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 followingprovision of Section 16, ArticleVII of the 1987 Constitution:
SEC. 16. The President shall nominateand,with the consent of the Commission on
Appointments, appointthe heads of the executive departments, ambassadors,
other public ministers and consuls,or officers of the armed forces from the rank of
colonel or naval captain,and other officers whose appointments are vested in him in
this Constitution....
In my view, the "other officers"whose appointments are vested in the President in the Constitution
are theconstitutional officers, meaning those who hold offices created under the Constitution,and
whose appointments are not otherwise provided for in the Charter. Those constitutional officersare
the chairmen and members of the Constitutional Commissions,namely:the Civil ServiceCommission
(Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-D), and the
Commission on Human Rights (Sec. 17, XIII).These constitutional commissions are,without
excaption,declared to be "independent," but whilein the caseof the Civil ServiceCommission,the
Commission on Elections and the Commission on Audit, the 1987 Constitution expressly provides that
"the Chairman and the Commissioners shall beappointed 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 clauseis found in Section 17, Article VIII creatingthe Commission on Human Rights. Its absence,
however, does not detract from, or diminish,the President's power to appointthe Chairman and
Commissioners of the said Commission.Thesource of that power is the firstsentence of Section 16,
ArticleVII of the Constitution for:
(1) the Commission on Human Rights is an officecreated 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 bemade by the President with the consent of the Commission
on Appointments, as provided in Section 16, ArticleVII of the Constitution.
It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirmappointments made by the Presidentis a "derogation of the
Chief Executive's appointingpower." 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 confirmingappointments is partof the power of appoi ntment itself.
It is,therefore, executive rather than legislativein nature. In givingthis power to an
organ of the legislativedepartment, the Constitution merely provides a detail in the
scheme of checks and balances between the executive and legislati veorgans of the
government. (Phil.Political Lawby Sinco,11th ed., p. 266).
WHEREFORE, I vote to dismissthepetition.
Medialdea, J., dissenting:
Separate Opinions
GUTIERREZ, JR., J.: DissentingOpinion
With all due respect for the contrary view of the majority in the Court, I maintain thatit is askingtoo
much to expect a constitutional rulingwhich results in absurd or irrational consequences to ever
become settled.
The President and Congress, the appointees concerned, and the general public may i n time accept
the Sarmiento III v. Mison rulingbecausethis Courthas the final word on what constitutional
provisionsaresupposed to mean but the incongruity will remain stickingoutlikea sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the consent
power of the Commission on Appointments is straightened out either through a re-examination of
this Court's decision or an amendment to the Constitution.
Section 16, ArticleVII of the Constitution consists of only three sentences. The officers specified in the
firstsentence clearly requireconfirmation by the Commission on Appointments. The officers
mentioned in the third sentence justas clearly do not require confirmation.The problem area lies
with those in the second sentence.
I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.
The firstgroup arethe heads of executive departments, ambassadors,other public ministers and
consuls,officers of the armed forces from colonel or naval captain,and other officers whose
appointments are vested in the President by the Constitution.The firstsentence of Section 16 state
they must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose appointments Congress has by lawvested in the
President alone. They need no confirmation.](https://image.slidesharecdn.com/103856295-cases-law-on-pub-off-with-election-law-150908180039-lva1-app6891/85/103856295-cases-law-on-pub-off-with-election-law-44-320.jpg)
![Coming now to the theory of the majority,I regret I am also unableto accept it. Consistentwith my
view in Mison,I submitthat what President Aquino extended to the petitioner on 17 December 1988
was an ad interim appointment that although immediately effective upon acceptancewas still subject
to confirmation.I cannotagree that when the President said the petitioner could and enter into the
performance of her duties, "all thatremained for Bautista to do was to reject or accept the
appointment." In fact, on the very day itwas extended, the ad interim appointment was submitted by
the President of the Philippines to the Commission on Appointments "for confirmation."
The ponencia says that the appointment did not need any confirmation,beingthe soleactof the
President under the Mison ruling.That would have settled the question quite conclusively,butthe
opinion goes on to argue another justification thatI for one find unnecessary,not to say untenable. I
sense here a palpableeffort to bolster Mison because of the apprehension that itis fallinga part.
Of course,there was no vacancy when the nomination was made on 14 January 1989.There is no
question that the petitioner was still validly holdingtheoffice by virtue of her ad interim appointment
thereto on 17 December 1988.The nomination made later was unnecessary becausethe ad
interim appointment was still effective.When the Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January 1989 requiringher to submit certain data and
invitingher to appear before it, itwas actingnot on the nomination but on the ad
interim appointment. What was disapproved was the ad interim appointment, not the nomination.
The nomination of 14 January 1989 is notin issuein this case.Itis entirely immaterial.At best, itis
important only as an affirmation of the President's acknowledgment that the Chairman of the
Commission on Human Rights must be confirmed under ArticleVII, Section 16 of the Constitution.
It does not follow,of course,that simply becausethe President of the Philippines has changed her
mind, and with the expressed supportof the Commission on Appointments, we should docilely
submitand reverse Mison.That is not how democracy works. The Court is independent. I do suggest,
however, that the majority could have erred in that caseand that the leastwe can do now is to take a
more careful look at the decision.Let us check our bearings to make sure we have not gone astray.
That is all I ask
I repeat my view that the Chairman of the Commission on Human Rights is subjectto confirmation by
the Commission on Appointments, for the reasons stated in my dissentin Mison Accordingly,I vote to
DENY the petition.
GRIÑO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the members of the Commissi on on Human
Rights by the President require review and confirmation by the Commission on Appointments in view
of the followingprovision of Section 16, ArticleVII of the 1987 Constitution:
SEC. 16. The President shall nominateand,with the consent of the Commission on
Appointments, appointthe heads of the executive departments, ambassadors,
other public ministers and consuls,or officers of the armed forces from the rank of
colonel or naval captain,and other officers whose appointments are vested in him in
this Constitution....
In my view, the "other officers"whose appointments are vested in the President in the Constitution
are theconstitutional officers, meaning those who hold offices created under the Constitution,and
whose appointments are not otherwise provided for in the Charter. Those constitutional officersare
the chairmen and members of the Constitutional Commissions,namely:the Civil ServiceCommission
(Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-D), and the
Commission on Human Rights (Sec. 17, XIII).These constitutional commissions are,without
excaption,declared to be "independent," but whilein the caseof the Civil ServiceCommission,the
Commission on Elections and the Commission on Audit, the 1987 Constitution expressly provides that
"the Chairman and the Commissioners shall beappointed 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 clauseis found in Section 17, Article VIII creatingthe Commission on Human Rights. Its absence,
however, does not detract from, or diminish,the President's power to appointthe Chairman and
Commissioners of the said Commission.Thesourceof that power is the firstsentence of Section 16,
ArticleVII of the Constitution for:
(1) the Commission on Human Rights is an officecreated 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 bemade by the President with the consent of the Commission
on Appointments, as provided in Section 16, ArticleVII of the Constitution.
It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirmappointments made by the Presidentis a "derogation of the
Chief Executive's appointingpower." 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 confirmingappointments is partof the power of appointment itself.
It is,therefore, executive rather than legislativein nature. In givingthis power to an
organ of the legislativedepartment, the Constitution merely provides a detail in the
scheme of checks and balances between the executive and legislativeorgans of the
government. (Phil.Political Lawby Sinco,11th ed., p. 266).
WHEREFORE, I vote to dismissthepetition.
Medialdea, J., dissenting:](https://image.slidesharecdn.com/103856295-cases-law-on-pub-off-with-election-law-150908180039-lva1-app6891/85/103856295-cases-law-on-pub-off-with-election-law-47-320.jpg)
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- 1. Homework Help https://www.homeworkping.com/ Research Paperhelp https://www.homeworkping.com/ Online Tutoring https://www.homeworkping.com/ click here for freelancing tutoring sites G.R. No. L-11985 MARIANO CONDE, plaintiff-appellant, vs. THE NATIONAL TOBACCO CORPORATION and THE BOARD OF LIQUIDATORS, defendants-appellees. Matias E. Vergara for plaintiff-appellant. Feliciano Tumale for defendants-appellees. DIZON, J.: Appeal by Mariano Conde from the decision of the Court of FirstInstanceof Manila dismissingthe complaintfiled by him againstthe National Tobacco Corporation and the Board of Liquidators, without costs. It appears that on September 6, 1940 appellantwas appointed Secretary-Treasurer of the National Tobacco Corporation with an annual compensation of P4,800 effective as of October 15, 1940.On August 22, 1941 he was appointed Secretary and AdministrativeOfficer of the same company with the same annual compensation.On October 23,1945 he was appointed Acting Secretary and AdministrativeOfficer of the company with an annual compensation of P5,100.00. On March 18, 1946 he was appointed Acting Secretary and AdministrativeOfficer with an increased annual compensation of P6,000.00. On September 16 of the same year he was appointed Treasurer and Chief, Credit Department, with the same annual compensation of P6,000.00. The appointment extended indicated that itwas a mere “change of designation”.On November 18,1946 he was appointed Treasurer and Credit Manager with an increased annual compensation of P7,200.00 effective as of November 1st of said year.Finally,on December 21, 1948 he was appointed Treasurer with a reduced annual compensation of P6,000.00 effective as of December 16,of said year.This was in pursuanceof Resolution No. 265 passed by the Board of Directors of the company on December 6, 1948,which stated, inter alia, that the reduction of the salary of appellantwas for the purpose of makinguniform the annual compensation of the Department Chiefs of the company. In this connection the resolution also renewed appellantof his duties as Secretary of the Board of Directors and AdministrativeOfficer,presumably in order that his work as department chief would not be much more than that of other department chiefs.Several petitions for reconsideration filed by appellantin connection with the reduction of his annual compensation weredenied by the Board of Directors. By executive order No. 372, the National Tobacco Corporation was dissolved and a Board of Liquidators was created for the purpose of settlingand closingits affairswithin a period of three years.Appellant also soughttwice from the Board of Liquidators a reconsideration of the Board resolution reducinghis annual compensation,buthis petitions were denied. As a result,after his retirement from the serviceof the National Tobacco Corporation on January 31,1952,he commenced the present action to recover from the latter and/or the Board of Liquidators,jointly and severally,the sum of P5,283.33, with legal interestthereon from the filingof the complaint,plus the sum of P1,750.00 for attorney’s fees, and the costof the suit.The firstamount represented alleged salaries and gratuity differentialswhich hefailed to receive by reason of the fact that the computations made for the payment of his salaries and gratuity were based on his reduced compensation of P6,000.00 per annum. The question raised by appellantin this instancemay be summarized as follows:firstly,thatthe document ExhibitB constituted an appointment and not a mere notice of the reduction of his salary, and that, therefore, it was not valid without the approval of the Chief Executive; secondly,that the approval of the Operation Budget of the company for the firstyear July 1, 1948, to June 30, 1949 by the Control Committee of the Government Enterprises Council did not amount to presidential
- 2. approval of ExhibitB;and lastly,thatthe court should havejudgment in his favor by reason of the prevailinggovernmental practiceof not applyingany reduction of salary for any particular position to the incumbent, and on the further ground that the Board of Directors of the National Tobacco Corporation had discriminated againstappellant. Appellantconcedes the authority of this former employee to reduce his salary or compensation,but argues that the document ExhibitB appointinghimas Treasurer was never approved by the President of the Philippines and,for this reason never became legally effective. This contention is untenable. It is true that the approval of the President was necessary in the caseof appointments to Positions in the National Tobacco Corporation involvinga salary of P3,000.00 or more annually.Itis likewisea fact that the appointments extended to appellantmentioned heretofore were submitted to and approved by the President of the Philippine,through the Chief of the Executive Officer with the exception of the lastwhich appointed him as Treasurer only and reduced his annual compensation fromP7,200.00 to P6,000.00.The rule referred to, however, would apply to appellant’s caseonly if the document marked ExhibitB constituted in factand in law,a real appointment and not a mere notice advising him of the reduction of his annual salary and of his duties as employee of the company. After a careful consideration of the circumstances thatled to the issuancethereof, we are inclined to believe that the document was in the nature of a mere notice and,therefore, needed no presidential approval.Itmust be observed that the precedingappointments were as Secretary-Treasurer (Exhibit C); as Secretary and AdministrativeOfficer (ExhibitD); as Acting Secretary and AdministrativeOfficer (ExhibitE); as Acting Secretary and AdministrativeOfficer (ExhibitF); as Treasurer and Chief, Credit Department (ExhibitG); and as Treasurer and Credit Manager (Exhibits A, A-1), whilethe one in question was as Treasurer exclusively.Appellant,therefore, was not given a new job; the s o-called “appointment” merely reduced his duties and, as a consequence, made a correspondingreduction states that the change was made in pursuanceof Resolution No. 265 which was adopted for the purpose of standardizingthe salaries of chiefs of departments, for which reason,“the compensation of the treasurer be (was) reverted to six thousand (P6,000.00) pesos per annum effective December 16, 1948″(Exhibit6). It is clear therefore, that exhibits 6 and B, in effect, merely took away from appellanthis additional duties as creditmanager,and in view of his reduced duties and to accomplish standardization of salaries,his compensation WAS REVERTED to P6,000.00 per annum. Moreover, the reduction of appellant’s duties was not at all arbitrary.Itwas motivated principally by the fact that there had been created in the corporation a separateposition with an annual compensation of P6,000.00, entrusted with the dischargeof the duties of which appellantwas relieved. From a technical pointof view, there would seem to be less reason to uphold appellant’s contention. The term” appointment” is in lawequivalentto “fillinga vacancy”(6 C.J.S. 89).In this caseitseems obvious to us that appellantnever vacated the position of Treasurer; he did not have to vacate itin order to acceptthe position to which he was “appointed” on December 21, 1948 (ExhibitB). In point of fact, therefore, the position of Treasurer was not vacated by him by reason of his alleged appointment as Treasurer only. The fact that the appointments extended in favor of appellantprior to the one in question were submitted to and actually approved by the Officeof the President of the Philippines isexplained by the fact that the appointment of September 6, 1940 was his original appointmentas Secretary- Treasurer and the subsequent ones involved increases in salary or additional duties imposed upon the appointee. Their submission to the Officeof the President was in pursuanceof a policy in relation to appointments in government controlled corporations involvingadditional expenditureand disbursement or appropriation of funds.There is no showingin the record that the same policy applied to a caseof reduction of salary. But even grantingthat the so-called appointment required presidential approval,itmay be cleaned from the record that there had been substantial compliancewith this requirement. The reduction of appellant’s salary,after its approval by the General Manager and the Board of Directors of the National Tobacco Corporation was carried in the Operation Budget of the corporation for the fiscal year July 1, 1948 to June 30, 1949.This Operation Budget was submitted to and approved by the Control Committee of the Government Enterprises Council,through its Chairman.This affirmative action was taken by authority of the Presidentof the Philippines (Exhibit8-A). It must be stated in this connection that by Executive Order No. 93 (Exhibit15) the Government Enterprises Council and particularly the Control Committee thereof is the representative of the President in the supervision of all government-owned and controlled corporations.Theact of said body,therefore, should be deemed to be an act done on behalf of the President of the Philippines himself.This mustbe binding upon appellantfor the reason that all his appointments prior to the one in question – which lie deems valid and regular – were not approved by the President of the Philippines personally butby the Executive Secretary acting“by authority of the President”. (Exhibits 1 to 5)
- 3. With what hasbeen stated heretofore we deem fully resolved the main questions involved in this appeal and,findingthe appealed decision to be in accordancewith law,the same is hereby affirmed, with costs. Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Gutierrez David and Paredes, JJ., concur. Paras, C.J. and Concepcion, J., took no part. G.R. No. 92103 November 8, 1990 VIOLETA T. TEOLOGO, petitioner, vs. THE CIVIL SERVICE COMMISSION, DR. PRUDENCIO J. ORTIZ, DR. JOSE M. TUPAZ, JR., and MRS. RUBY G. GELVEZON, respondents. Tranquilino R. Gale for petitioner. Rene S. Sarabia for Ruby G. Gelvezon. Thelma S. Panganiban-Gamindo,Rogelio C. Limare and Florencio P. Gabriel, Jr. for CSC. CRUZ, J.: The petitioner questions the appointment of privaterespondent Ruby G. Gelvezon as Chief Nurse I of the Representative Pedro Trono Memorial Hospital in Guimbal,Iloilo,as approved by the Civil Service Commission in its Resolution No. 89-321 dated May 5,1989. She claims shehas a preferential rightto be appointed to the said position,which shehad held in an actingcapacity for more than a year. She stresses that she is next-in-rank and not disqualified;Gelvezon, on the other hand,is not eligible. At the time of the challenged appointment, Gelvezon was no longer in the service, havingretired as Senior Nurse of the said hospital on October 26,1986,subsequently collectingthe gratuity, terminal leave and other benefits due her. She was therefore being reinstated under CSC Memorandum- Circular No.5, s-1983,which allows thereinstatement of a retiree only under certain conditions.The required request of the Regional Health Office No. 6 for authority to reinstateher was denied by Civil Service Regional OfficeNo. 6 (CSRO No. 6) on the ground that the vacancy could befilled by promotion of qualified personnel,"attention being invited to the attached copy of the letter protest dated September 15,1988 of Ms. Violeta Teologo," one of two other aspirants for the same position. This denial was appealed to the Civil ServiceCommission by Dr.Prudencio J. Ortiz, Regional Health Director, who justified the appointment of Gelvezon on grounds of the "exigency of the service" and her superior qualificationscompared to those of the other applicants. In the assailed resolution,theCSC set asidethe denial of CSRO No. 6 and directed it "to take appropriateaction on the appointment of Mrs. Ruby G. Gelvezon, subjectto Civil ServiceLaws and Rules." It declared inter alia that "in the caseof Mrs. Gelvezon, who is neither a retiree nor overage (57 or over), the head is not required to secure prior authority." The petitioner filed a motion for reconsideration insistingthatthe appointment of Gelvezon was violativeof lawand the pertinent administrativeregulations,particularly CSC Memorandum Circular No. 5, s-1982.CSRO No. 6 also reminded the CSC that "grant of authority is a condition precedent before Mrs. Gelvezon can be reinstated in the service, consideringthatsheretired therefrom as may be duly supported" by her application for retirement dated May 23, 1988 and its approval effective October 26, 1988. These representations were denied by the CSC in its Resolution No. 90-307,dated January 11, 1990, the dispositiveportion of which read: WHEREFORE, the foregoing premises considered,the Commission resolved to deny, as ithereby denies, the instantmotion for reconsideration.The earlier decision of this Commission as embodied in CSC Resolution No. 89-321 dated May 5, 1989 is therefore affirmed. However, Mrs. Ruby G. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director of Region VI, Iloilo City arehereby admonished to be more prudent and circumspectin makingrepresentations, otherwise, a repetition of a similar actin thefuture will be dealtwith administratively. The petitioner then came to this Court, claimingthatthe respondent CSC had committed grave abuse of discretion in sustainingthe reinstatement of private respondent Gelvezon. Required to comment, the Solicitor General begins with an assertion of his rightand duty "to present to the Court the position thatwill legally uphold thebest interest of the Government although it may run counter to a client's position"and his "specific mandateto actand represent the Republic and/or the people before any court, tribunal,body or commission in any matter, action or proceeding which, in his opinion,affects the welfare of the people as the ends of justicemay require." He then declares that he cannot agree with the respondent CSC and proceeds to explain why he thinks it is in error. In the recent caseof Orbos v. Civil ServiceCommission 1 we sustained the authority invoked here by the Solicitor General.To be fair,however, we have made it clear thatwhenever he dis agrees with the office he is supposed to represent, as in the caseat bar,we shall allowsuch officeto fileits own comment in support of its position.Such comment has been submitted by public respondent CSC. It is the contention of the Solicitor General thatthe abovementioned resolutions of the CSC should be reversed as contrary to lawand regulations.His viewis that the CSC cannot directthe appointment of Gelvezon as this would be an encroachment on the prerogative of another department, besides the
- 4. fact that thereis no justification for her appointment in view of her ineligibility and the availability of other candidates.He notes especially her disqualification for the officefor havingmisrepresented that she had merely resigned (and so needed no special authority to return) when the truth was that she had retired. It is true, as he maintains,thatthe CSC cannot usurp the appointingpower from the appropriate authority and substituteits choicewith another on the ground that the latter is better qualified.The discretion to determine this matter belongs to the appointingauthority and not respondent CSC. The only function of the CSC in this regard is to ascertain whether the appointee possesses the prescribed qualificationsand,if so,to attest to such fact. The only ground upon which the appointment may be disallowed is thatthe appointee is not qualified,notthat he is in its opinion less qualified than others. The presumption is that the appointingauthority is the best judge of this matter. As we said in Luego v. Civil ServiceCommission:2 Appointment is an essentially discretionary power and must be performed by the officer in which itis vested accordingto his bestlights,the only condition beingthat the appointee should possess thequalificationsrequired by law.If he does, then the appointment cannotbe faulted on the ground that there areothers better qualified who should havebeen preferred. This is a political question involving considerationsof wisdomwhich only the appointingauthority can decide. The CSC denies that it has usurped the appointingpower of another department and stresses that all it did was directCSRO No. 6 to acton the appointment made by the Health authorities.Itwas not makingthe appointment itself or orderingitto be made but merely sustainingitunder the applicable civil servicerules and regulations.FindingthatGelvezon possessed the prescribed qualificationsand satisfied the requirements of CSC Memorandum-Circular No. 5, s-1983,ithad merely approved her reinstatement as proposed by the Regional Health Director. It is not clear fromthe records who has appointed Gelvezon as Chief Nurse I. Dr. Jose M. Tupaz, Jr., Director of the Hospital,merely recommended her reinstatement to Dr. Prudencio M. Ortizas Regional Health Director,who in turn requested from CSRO No. 6 authority to reinstateher. The reinstatement was presumably to be done by him. Under the law, itis the Presidentof the Philippines or his alter ego, the Secretary of Health, who can make appointments of key personnel in the Department of Health. Yet, in the caseatbar, Dr. Ortizwas askingfor authority to reinstate Gelvezon as if he himself had the power to do this. It seems to us that Dr. Ortiz's request should atthe very leasthave been coursed through or cleared by the Secretary of Health before being submitted to CSRO No. 6 with his approval.The reinstatement of Gelvezon would require a new appointment and ithas not been shown that the Regional Health Director has the power to make such appointment. The presumption of regularity of official functions isnotapplicablebecausethe power in question clearly belongs notto Dr. Ortiz but his superiors. But even assumingthatthe Regional Health Director was duly empowered to make the appointment, there were still special conditionsthathad to be fulfilled under Memorandum-Circular No. 5, s-1983, which, significantly,was promulgated by the Civil ServiceCommission itself.Itmustbe remembered that we deal here not with the appointment of a newcomer to the public service.Gelvezon is a retiree. Additional requirements areprescribed for her appointment becauseit involves the reinstatement of a person who, after havingleft the government, has a change of heart and wishes to return. These requirements areembodied in CSC Memorandum-Circular No. 5, s-1983,readingin full as follows: MEMORANDUM CIRCULAR TO: ALL HEADS OF MINISTRIES, BUREAUS, AND AGENCIES OF THE NATIONAL AND LOCAL GOVERNMENTS, INCLUDING GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS. SUBJECT: Guidelines on Appointment of Persons who have Reached the age of 57 Years. Reinstatement of persons who have been Previously Retired from the Service, and Retention in the Service of Persons who have Reached the Compulsory Retirement Age of 65 Years Pursuantto Presidential Decree No. 830 dated November 27, 1975 as implemented by Letter of implementation No. 47 dated August 18, 1976,the Civil ServiceCommission is empowered to reinstate in the service persons who have been previously retired from the service, and to extend the services of persons who have reached the compulsory retirement age of 65 years,except Presidential appointees. To insureeffective and facilitateaction on requests of such nature, the followingguidelines are prescribed: 1. All requests shall bemade by the appointingauthority concerned and directly addressed to the respective Civil ServiceRegional Office.CSC Regional Offices have been given authority to act on such requests. 2. Requests for authority for such appointment, reinstatement or retention shall meet the followingconditionsas certified by the appointingauthority. a. the exigencies of the serviceso require;
- 5. b. the officeror employee concerned possesses special qualification notpossessed by other officers or employees in the agency where he is to be appointed or retained; and c. the vacancy cannotbe filled by promotion of qualified officers or employees in the agency concerned, or by transfer of qualified officers or employees from other government agencies,or there are no eligibles in theappropriateregister of the Commission availablefor certification to the vacancy. 3. No person shall bereinstated if he has been separated from the servicethrough delinquency or misconducton his partor if he has been separated under LOI Nos. 11, 14, 14-A, and 14-B unless he has been granted executive clemency by the President. 4. Each request must be accompanied by a medical certificateissued by a government physician certified thatthe person is still physically and mentally healthy to be appointed in the service. 5. Officers or employees who have been recommended for appointment, reinstatement, or retention in the service shall not be allowed to assumed or continue in office pending receipt of authority from the Civil Service Regional Office concerned. Henceforth, all requests relatingto the above matters should make reference to this Memorandum Circular. This Memorandum Circular shall takeeffect immediately. (SGD.) ALBINA MANALO-DANS Chairman August 1, 1983 (Emphasis supplied). The Solicitor General maintainsthatthe appointment of Gelvezon, assumingithas been made by the appropriateauthority,nevertheless does not meet the three conditions mentioned in Paragraph 2 of the memorandum-circular.Neither is the authorization to reinstate required in Paragraph 5 sustainableunder the proven facts. Like the assessmentof the appointee's qualifications,the determination of whether the appointment is demanded by the exigencies of the serviceshould be made by the appointingauthorities themselves, at leastin the firstinstance.As it is they who can best understand the needs and operations of their own offices,their findings on this matter are entitled to great respect even from this Court. We note, however, that in meeting the requirement of Paragraph 2(a),Dr.Tupas, as Director of the RPTMH merely said in his recommendation. 3 1. That the exigency of the servicedemands that the position should befilled. Problems in the NursingService have cropped up, wanting of the attendance of a nursingadministrator which may assume,unmanageable magnitude if left unsolved. This same recommendation was reiterated verbatim by Dr. Ortiz in his own letter to CSRO No. 6 requesting authority to reinstateGelvezon . 4 Its tortuous construction aside,the above-quoted statement actually saysnothing.Itis no more than so many cliches stringed together to satisfy therequirement, without any earnest effort to specify the problems facingthe NursingService and why they "may assumeunmanageable magnitude if left unsolved"because of the non-appointment of the recommendee. The "exigency of the service"is not explained nor is itshown why it"demands" the fillingof the position.The necessity for Gelvezon sounds exaggerated. The generalization seeks more to impress than to inform and persuade. If a meaningless justification likethis could suffice,the requirement might as well be discarded altogether as a useless formality. Regarding subsection (b),the respondents stress that in the examination given by the Selection, Placement and Promotion Board of the RPTMH, Gelvezon placed firstwith a ratingof 88.25%, followed by Medalla P.Balandra with 87.5%and Violeta T. Teologo with 83.25%. This was probably the main reason for the conclusion thatGelvezon was the best candidateamong the three and for the followingencomium from Dr. Ortiz(again echoingDr. Tupaz word for word): 2. Mrs. Ruby G. Gelvezon brings alongwith her the degree of competence, respectability and dedication to service,qualities very desirableamongpeople in the Civil Service,especially in the Department of Health. These qualities arefound wanting in the other applicants. 5 It is not explained why applicants Balandraand Teologo are "wanting" in the qualities of "competence, respectability and dedication to service"that seem to be the exclusivevirtues of the privaterespondent. The statement is itself wantingfor not statingwhat other special qualifications Gelvezon possessed,besides toppingthe examination,that were not possessed by the other candidates.The qualificationsof these aspirantswere not discussed atall and were probably simply dismissed as irrelevant.Butthey arenot, of course, for the requirement is that the appointee must possess special qualifications"notpossessed"by the other candidates.
- 6. As we seeit, the recommendation is atbest an unfair commentary on Balandra and Teologo,at worst an undeserved disparagement of their credentials.These are not so far behind those of Gelvezon, especially in thecaseof Balandra,or even of Teologo, who had served as actingChief Nurse and holds the degree of Bachelor of Science in Nursing.Gelvezon finished only the Graduate Nurse course. The discretion given the appointingauthority is subjectto stricter review where the person appointed is beingreturned to the government after voluntarily retiringand collectingall thebenefits appurtenant to such retirement. The earlier approval of Gelvezon's retirement signifiesthather services as Senior Nursewere dispensablein 1986.Suddenly sheis needed again.Itmust take more than the usual explanation to justify her reinstatement now on the ground that her services areafter all indispensable.A retiree cannotjustresume where he left off without the special qualifications (not possessed by the other candidates) required in Paragraph 2(b). Even assumingthatGelvezon does have these qualifications,her appointment is still notdefensible under Paragraph 2(c) becausethere are other candidates for the officewho are eligibleand available. The rule expressly allows reinstatementonly "if the vacancy cannotbe filled by promotion of qualified officers or employees in the agency concerned." Itis true that the next-in-rank rule admits of exceptions, as we have ruled in many cases. 6 But deviation from that rulerequires special justification in thecaseat bar becausea retiree should ordinarily notbe allowed to pre-empt incumbent aspirants. The treatment of Paragraph 5 is still another matter that is not easy to understand. Contrary to the original findingsof the respondent CSC, there was a need for authority to reinstateGelvezon because she had retired from the public servicefour years ago.The reason for the original erroneous finding was her suppression of that material fact.Confronted later with the record, she could not deny that she had indeed not merely resigned but retired. The CSC then retracted its earlier statement and conceded that as a retiree Gelvezon was directly covered by the memorandum-circular.Nevertheless, by some queer logic,itblandly declared in its Resolution No.90-037: ... Moreover, the Commission,in said Resolution,directed CSRO No. 6 to acton the appointment of Mrs. Gelvezon for the reason that the Commission found that said Mrs. Gelvezon merely resigned from her position and thus,CSC MC No. 5, series of 1983 does not apply to her case.By this action of the Commission,whatever defect there may be in the questioned appointment of Mrs. Gelvezon to the contested position is thus validated or rectified. The Court feels that in givingsuch authority,the CSC was unduly forebearing. Even if Paragraph 2 were disregarded,Gelvezon would still notqualify for the position becauseshehad falsified her application and concealed the factthat she was a retiree. It is plain thatshewas less than honest. As the CSC itself later declared: A keen restudy of the casereveals that Mrs. Gelvezon actually filed an Application for Retirement under RA 1616 on May 23,1986 effective October 26, 1986,as shown by the said document and her signaturein it. More importantly, in a letter dated July 12,1988 to the Secretary of the Department of Health (DOH), the Manager of the Government ServiceInsuranceSystem (GSIS), Iloilo Branch,Iloilo City, approved the said application for retirement of Mrs.Gelvezon effective October 26, 1986, which approval was docketed as Retirement Gratuity No. ILO-RG 003331.Hence, it can be said that a misrepresentation or suppression of fact was made by Mrs. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director as to the alleged resignation of Mrs. Gelvezon ..., (Emphasis supplied). One wonders why, despite this finding,the CSC still approved Gelvezon's appointment, deciding simply to rap her on the wristwith a mere admonition.To use the languageof Rule 111, Section 23, of Civil ServiceRules and Personnel Actions and Policies,she"had intentionally madea false statement of a material factor had practiced or attempted to practicea deception or fraud in connection with her appointment." Yet the CSC brushed asidethis offense as a minor infraction that deserved no sterner action than a mild reproof. Her reinstatement does not squarewith the high standards theCSC has itself setfor the members of the Civil Service.As the constitutional body charged with the improvement of the quality of the civil service,the CSC should havebeen the firstto question Gelvezon's appointment instead of heartily endorsingit. Parenthetically, we note the Solicitor General's observationsthatGelvezon was not really being reinstated as shehad never before held the position of Chief Nurse I, havingretired only as Senior Nurse, He is correct, strictly speaking,butthe word out "reinstatement" was probably used in a generic sense to mean simply returningto the service. At any rate, the point is notreally material because the memorandum-circular speaks of "appointment, reinstatement or retention" of the persons covered by its provisions. We hold,in sum, that as a retiree, Gelvezon could not be simply reinstated likeany new appointee but had to satisfy the stringent requirements laid down by CSC Memorandum-Circular No. 5, s-1983. Whileitis true that the appointingauthority has widediscretion to determine the need to appoint and to assess thequalificationsof the person to be appointed, that discretion may not be exercised ex-gratia but "in conformity to the spiritof the lawand in a manner to subservethe ends of substantial justice." 7 That discretion may be reviewed and reversed in proper cases,especially where extraordinary careis required to attend its exercise,as in the caseat bar.Apart from the factthat the Regional Health Director does not appear to be the official authorized to appointthe private respondent, we are not convinced that Gelvezon was the best choiceunder the particular circumstances of this case,not the leastimportant of which was the shuntingasideof the other candidates,who were eligibleand available,besides beingincumbent in the service. We also feel that whilenot the crucial consideration,theprivaterespondent's disqualification should havebeen taken into serious accountin comparingthe over-all competence of the candidates instead of being dismissed as a lightand forgivablemisdeed.
- 7. It is reallycurious thatGelvezon was accommodated in the disputed position despitethe confluence of formidablearguments againsther reinstatement. For prejudicingtherights of the other qualified candidates,the grave abuse of discretion clearly shown here should be corrected and reversed. Promotions in the Civil Serviceshould alwaysbemade on the basis of qualifications,including occupational competence, moral character,devotion to duty, and, not leastimportant, loyalty to the service.The lasttraitshould always begiven appropriateweight, to reward the civil servantwho has chosen to make his employment in the Government a lifetimecareer in which he can expect advancement through the years for work well done. Political patronageshould notbe necessary.His record aloneshould be sufficientassurancethatwhen a higher position becomes vacant,he shall be seriously considered for the promotion and,if warranted, preferred to less devoted aspirants. WHEREFORE, certiorari is GRANTED. CSC Resolution Nos. 89-321 and 90-037 are hereby SET ASIDE as NULL AND VOID. It is so ordered. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ., concur. Feliciano, J., is on leave. Footnotes 1 G.R. No. 92561,September 12,1990. 2 143 SCRA 327. 3 Rollo, p. 39. 4 Ibid., p. 191. 5 Id. 6 Pineda v. Claudio 28 SCRA 3; Taduran v. Commissioner of Civil Service,131 SCRA 66; Luego v. Civil ServiceCommission,143 SCRA 327; Santiago v. Civil service Commission,G.R. No. 81467,October 27,1989. 7 Lamb v. Phipps,22 Phil.456. G.R. No. L-31947 March 21, 1974 ANTONIO P. TORRES, petitioner, vs. OSCAR T. BORJA, ALEJO SANTOS, in his capacity as Acting Director of Prisons, and the HONORABLE ABELARDO SUBIDO, in his capacity as Commissioner of Civil Service, respondents. Puno Law Office for petitioner. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Dominador L. Quiroz and Solicitor Rosalio A. de Leon for respondents. FERNANDO, J.:p There are constitutional overtones in this certiorari proceedingto set asidethe appointment of respondent Oscar T.Borja to the position of penal supervisor of the Bureau of Prisons,the other respondents being Alejo Santos,then Acting Director of Prisons,and Abelardo Subido,the then Commissioner of Civil Service,with the then Secretary of Justice,now National Defense Secretary Juan Ponce Enrile,not being proceeded against.In effect, this is a quo warranto suit,petitioner assertinga rightto the contested office,allegingthat his failureto be thus chosen amounted to a clear and plain disregard to constitutional requirements,both substantiveand procedural.As to the former, he would invoke the merit and fitness principleenshrined in the fundamental law. 1 As to the latter, he would rely on due process in administrativeproceedings in accordancewith the cardinal requirements as set forth by JusticeLaurel in Ang Tibay v. Court of Industrial Relations. 2 It is to the creditof petitioner's counsel,now Solicitor,Reynato S. Puno, that he could press such contention with learningand with vigor.At bottom, however, the question is really theacceptance or repudiation of the choiceof a successor to a vacantposition.As will beapparent, the matter was studied with careby three high-rankingpublic functionaries,precisely entrusted with such responsibility.Itstrains credulity to impute to them a failureto abideby what the Constitution commands as to the test of fitness.After all,even consideringthatacademically petitioner had a more creditablebackground,respondent Borja had in his favor experience and seniority.It borders on the unorthodox, the servicerecords of both aspirants beingknown, to cavil atthe allegation of a lack of fullblown hearingconcerningthe choiceof a successor to a vacancy.The standard of due process is fairness.Whatis proscribed by itis arbitrariness. 3Relianceon the Constitution, whether substantively or procedurally,was thus in vain.The petition must fail. The facts are not in dispute. As shown in the petition, on July 27,1968, the position of penal supervisor in the Bureau of Prisons fell vacant.Eightdays later, on August 4, 1969,respondent Santos, then its Acting Director,recommended to then Secretary of JusticePonce Enrilethat respondent Borja be the successor.Even before the retirement of the incumbent, however, on April 28, 1969,to be exact, petitioner, then trainingofficer,had already protested the proposed promotion of respondent Borja,with the claimthathe was academically better prepared as he had two degrees, Bachelor of Arts and Bachelor of Science and he had five civil serviceeligibilities.On July 23,1969,
- 8. there was acommunication of the then Secretary Ponce Enrileto respondent Borja that the objection of petitioner to his proposed promotion as penal supervisor was well taken. 4 There was however, a second indorsement of August 11, 1969 from respondent Santos to Secretary Ponce Enrileworded thus: "It may be stated in this connection the cases of retired Penal Supervisor Gil Ofina who only finished 2nd grade civil serviceeligibility,and retired Penal Supervisor Jose Gatmaitan who only finished 2nd Year High School with a 1st grade civil serviceeligibility.Moreover, Mr. Magno Castillo, who is only a High School graduate with a 2nd grade civil serviceeligibility,proposed for promotion as Penal Supervisor,IwahigPenal Colony,was allowed by that Office, and approved by the Commissioner of Civil Servicenot earlier than August 7, 1969." 5 On November 28, 1969,Secretary Ponce Enrilegave "due courseto the appointment of Mr. Borja to the position of penal supervisor.6 Its lastsentence reads:"The letter of this Department dated July 23,1969, is set aside accordingly." 7 After setting forth that neither petitioner nor respondent Borja were next in rank to the contested position,the Secretary made clear why itis the latter who should be preferred. Thus: "A review of the records of the casereveals that the Civil ServiceCommission had in the past approved the appointments of the followingto positions of Penal Supervisor:1.Gil Ofina (retired) — finished only second year high school and a second grade civil serviceeligible;2. Jose Gatmaitan (retired) — finished only second year high school and firstgradecivil serviceeligible;and,3. Magno Castillo — a high school graduateand second grade civil serviceeligible.Mr. Borja is a high school graduate and a second grade and prison guard eligible.The Complaints Committee of the Department of Justice took cognizanceof his outstandingperformance as shown in the report of that Bureau. On the basis of the commendations and citations given himand his performa nce ratingof outstanding,it is believed he is fitto perform the duties and responsibilitiesof penal supervisor." 8 The appointment of respondent Borja was appealed to the Civil Service Commission.9 The decision of respondent Subido turningdown the appeal of petitioner came on January 29, 1970.Why there should be no reversal of the appointment of respondent Borja was therein explained in these words: "Mr. Torres is a Bachelor of Arts and in addition,he is also a Bachelor of Science in Commerce. He is a Supervisor (FirstGrade) Chief of Police;General Clerical; Cooperative Officer; and Patrolman (City of Manila) eligible.He has been with the Bureau of Prisons since1951,and has held various positionssuch as Driver,Prison Guard,Keeper, Supervising Prison Guard and finally asSecurity Officer I.He attended and completed the followingin-servicetraining courses and seminars:Executive Development and Public Administration;Law Enforcement Officer's Course; Special Security Officer's Course;Correctional Administration and Treatment; Supervision Techniques in Correctional Service;Seminar on Custodial Procedures;Seminar on Performance Rating System; Seminar on "The Role of Law Enforcement Agencies in Crime Prevention and Seminar on the Treatment of Offenders." He was the recipientof a citation of Merit Award for academic excellency and for leadership.His efficiency ratingfor the relevantperiod is very satisfactory.On the other hand, Mr. Borja is a high school graduateand a 3rd class Prison Guard and a second gradeeligible.He started to work for the government in 1942 as a 3rd Class Guard in theBureau of Prisons,then he was promoted to the positions of 2nd Class Guard;1stClass Guard;Junior Inspector;Overseer; and Security Officer which position heholds to the present. He completed in-servicetrainingcourses on Supervision Techniques on Correctional Serviceand on Custodial Procedures.His efficiency ratingfor the same period is outstanding." 10 There was a motion for reconsideration for petitioner dated March 4, 1970. Thereafter on March 20 of that year, itwas denied. Again respondent Subido gave the reason of the absence of any justification for a reversal.Thus:"This refers to the petition filed by Mr. Antonio P. Torres for reconsideration of the action taken by this Officein a 4th Indorsement dated January 29, 1970,approvingthe appointment of Mr. Oscar T. Borja as Penal Supervisor in theNew Bilibid Prison,Bureau of Prisons atP4404 per annum effective August 4, 1969, and ruling his protest without merit. After a careful re-study of the record of the case,this Office finds thatpetitioner has not submitted any new material evidence that would warrantmodification of the action taken by this Office. Wherefore, the instantpetition is hereby denied. In this connection, attention is invited to Section 14 of the Civil ServiceMemorandum Circular No.13, series of 1963 which states in parts: 'Only one petition for reconsideration shall beentertained.' " 11 Hence this petition for certiorari before this Court. The bare recital of the undeniablefacts demonstrates wellnigh conclusively why this petition for certiorari,as setforth at the outset, is doomed to fail.In the lightof the foregoing, it is apparentthat the choiceof respondent Borja was not contrary to but in accordancewith the principleof merit and fitness.Nor do the circumstances discloseany failureto accord petitioner all the opportunity to be heard on his claimthathe was entitled to the promotion sought. 1. The plea that only merit and fitness should be the gauge of promotion the public servicefinds support, as noted, in both the 1935 Constitution and the present Charter. That such should bethe caseis self-evident.It is a truismthat a public officeis a public trust.The test then should be, after being clear what kind of work is to be done, who can do itbest. To that over mastering consideration, all elseis subordinate.Itcannot be too often stressed that the protection accorded a civil servant, whileundoubtedly accruingto his benefit, is intended primarily to assurethatwith the security of tenure and rational basisfor promotion,there is an inducement for individualsof the requisiteskill and ability to enter public service.The standard in this specific casethen should be who as between the two contenders met such criterion.It was the decision of the three administrativeofficials entrusted with such responsibility thatrespondent Borja was entitled to the promotion. It came about with the records of both being carefully scrutinized.The very petition with its annexes is indicativethatthere was not the slightestfavoritismor discrimination shown.Respondent Borja appeared to have both experience and seniority on his side.Moreover, he is possessed of the ability to dischargethe task incumbent on a penal supervisor.He had earned the promotion then. What is more, there was no disregard of the constitutional principleof merit and fitness.It may not be inappropriateatthis stage to refer to Orencia v. Ponce Enrile. 12 There, after stressingthatthe essential requirement for a placein the public serviceis thepossession of the requisiteability and competence, we upheld the rightto the disputed position of assistantchief of the clerks of court division of respondent Guillermina M.Gener, a member of the bar,rather than petitioner whose educational attainmentwas merely that of a high school graduate. Itis quite obvious there is no analogy.In that decision the disparity israther plain,theposition beingone in which the possession of a legal background would certainly provemore than salutary.Itis notso in the casebefore us where the contest is over who should be penal supervisor.Whatever advantage may inhere in petitioner havingfinished collegework, with respondent Borja merely completing his high school,is more than offset by the latter's seniority of more than nineyears and the experience that was his as a junior inspector,overseer and security officer.To repeat, no infringement of the constitutional requirement as to merit and fitness is discernible.The petition must fail.
- 9. 2. The invocationof procedural due process by petitioner is equally unavailing.This is notto say that under all circumstances,the insistenceon the rightto be heard should be rejected outright. It is to be remembered that both under the 1935 Constitution and the present Charter, an officer or employee in the Civil Serviceis notto be suspended or removed except for causeas provided by law. 13 It follows thatfor a provision of this character to be truly meaningful, and security of tenure to be really significant,the expected promotion of an employee is not excepted from the operation of the due process guarantee. There is to be no unfairness or arbitrariness.Theright to be heard should notbe ruled out. Audi alteram partem. The acceptanceof this doctrine does not however aid petitioner. For if there is anythingthatis clear from the undisputed facts,it is that he was accorded full hearing.His very petition makes that clear.Included therein were his six-pageprotestregistered as far back as April 28,1969 to the proposed appointment of respondent Borja; 14 his seventeen-page appeal to respondent Subido after the appointment made by the then Secretary Ponce Enrileof respondent Borja,dated January 6, 1970 with annexes of its own requiringtwelve pages; 15 his ten-page reply to answer dated February 23,1970 reiterating his claimthathe should be given the contested position;16 and lastly,his fourteen-page motion for reconsideration addressed to respondent Subido dated March 4, 1970. 17 Parenthetically,itmay be observed that in all such communications, petitioner was understandably far from being unduly modest, stressingthe virtues possessed by hi m. Moreover, again understandably,hewas more than justdeprecatory as to the fitness of respondent Borja.It would be an affront to reason therefore to hold that under such circumstances,petitioner was not given the hearingprior to the rejection of his claimto the position so fervently sought by him. 3. The constitutional objection thus beingshown to be lackingin merit, the question really boilsdown as to whether, consideringthe facts on record, this Court should set asidethe decision reached after due careand circumspection by the three high-rankingexecutive officialsthatrespondent Borja rather than petitioner Torres should be the appropriatechoicefor the position of penal supervisor. The answer is supplied by Reyes v. Abeleda. 18 There is this relevantexcerpt from that decision:"It would seem fairly obvious then that the lawdoes not imposea rigid or mechanistic formula on the appointingpower, compliancewith which is inexorableand a deviation therefrom fatal.Far from it. If there be adherence to the concept that public officeis a public trust,as there ought to be, the criterion should bewhat public welfaredemands, what satisfies publicinterest.For itis axiomatic that public needs could best be attended to by officialsabout whose competency and ability there is no question. To that over mastering requirement, personal ambition mustof necessity yield. Discretion if not plenary,at leastsufficient,should thus be granted to those entrusted with the responsibility of administeringtheoffices concerned, primarily thedepartment heads. They are in the most favorableposition to determine who can best fulfill thefunctions of the office thus vacated. Unless,therefore, the lawspeaks in the most mandatory and peremptory tone, consideringall the circumstances,there should be, as there has been, full recognition of the wide scope of such discretionary authority.Happily,there is nothingin the Civil ServiceAct, which is fittingly concerned with protecting the rights of those in the career service,that, rightly construed, callsfor a different conclusion.Itis well worth repeating that the broad authority of a department head appears indisputable.Such is the policy of the law,a policy reflected with fidelity in the decisions of this Court." 19 Such an approach has substantially been followed. 20 WHEREFORE, the petition for certiorari is denied. No costs. Zaldivar (Chairman), Barredo, Fernandez and Aquino,JJ., concur. Antonio, J., took no part. Footnotes 1 ArticleXII,Sec. 1 of the 1935 Constitution reads:"A Civil Serviceembracingall branches and subdivisionsof the Government shall beprovided by law. Appointments in the Civil Service,except as to those which are policy-determining, primarily confidential or highly technical in nature,shall bemade only accordingto merit and fitness,to be determined as far as practicableby competitive examination."There is a reiteration of the above provision in thepresent Constitution,Article XII,B, Sec. 2. G.R. No. 95425 February 26, 1992 FLORENCIO P. SALLES, petitioner, vs. NICEFORO B. FRANCISCO, CERILO FRANCISCO, HON. JOSE V. ONG and HON. PATRICIA STO. TOMAS,respondents. Reynaldo L. Herrera for petitioner. Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Patricia Sto. Tomas. NOCON, J.: This is a petition for quo warranto seeking to recall,cancel and revokethe appointment of the defendant-appellee Niceforo B. Francisco as Chief Revenue Officer III. The instantpetition is a resultof the Decision promulgated by the Merit System and Protection Board, Civil ServiceCommission June7, 1990 in MSPB CaseNo. 589, entitled "Florencio P. Salles vs. Niceforo B. Francisco",dismissingpetitioner Florencio P.Salles' appeal fromthe decision dated September 25, 1989 of the Committee on Contested Appointments, Bureau of Internal Revenue, also dismissinghisproteston the appointment of respondent Niceforo Francisco to the position of Chief Revenue Officer III,Fiscal OperationsBranch,Revenue Region 5, Legaspi City.
- 10. The undisputed factsof the caseareas follows: Respondent Niceforo Francisco hasbeen workingwith the Bureau of Internal Revenue since1978 as Revenue Collector I. He was subsequently promoted to the position of Revenue Budget Examiner II effective July 31, 198l;Revenue Budget Officer effective August 1, 1985; and a year later,to the position of Revenue Fiscal Officer effective October 28, 1986. Pursuantto Executive Order No. 127 1 (Reorganizingthe Ministry of Finance),the Bureau of Internal Revenue created a Fiscal Operationsbranch in Revenue Region 5, BIR, Legaspi City which required the appointment of a Chief Revenue Officer. A certain Fe D. Peralta was appointed by BIR Commissioner Bienvenido A. Tan to said position.On being informed of said appointment, petitioner, then a Revenue Enforcement Officer assigned in the BIR officein Goa, Camarines Sur protested Peralta's appointmentwith the BIR-Reorganization Appeals Board (BIR-RAB) on the ground that the appointee did not possess the minimum qualification requirements for the position. Whilepetitioner's protest was pending before the BIR-RAB, defendant Francisco was temporarily appointed to the position of Chief Revenue Officer III,Fiscal Operations Branch,Revenue Region 5, BIR, Legaspi City by the then BIR Commissioner Bienvenido A. Tan, Jr. effective November 1, 1987. Meanwhile, in a letter dated July 1, 1988,the protest of petitioner over the appointment of Fe D. Peralta was dismissed for havingbeen filed out of time. Petitioner moved for reconsideration of the BIR-RAB's rulingand this time included in his protest the appointment of defendant Francisco. On July 25, 1988,the BIR-RAB thru its Chairman,informed petitioner aboutthe Rules and Regulations embodied in Revenue Memorandum Order No. 15-88 dated March 7, 1988 and was advised to go to the Civil ServiceCommission.Hence, the petitioner, in his letter dated August 29, 1988 directed his appeal only againstthe appointment of defendant Francisco asChief Revenue Officer III.In his appeal,he advanced the following:(1) That Defendant Francisco isholdingthe position in a temporary capacity;(2) That appelleeis a mere collegegraduate whileappellantis a Certified Public Accountant (CPA); (3) That he has been an Examiner III in the Commission on Audit (COA), and has attended several seminars on Government Accounting and Auditing and taught the subject.On two occasionshehas been designated as Officer-in-Charge. Meanwhile, defendant Francisco'stemporary appointment to the position of Chief Revenue Officer III was renewed effective November 1, 1988. On March 6, 1989,the Civil ServiceCommission dismissed 2 petitioner Salles' appeal for lack of merit. The Commission ruled that — After a careful review of the records,in the absenceof a showingor proof to the contrary,this Commission adheres with the BIR-RAB findingthat, subjectprotest was filed beyond the reglementary period. Section 18 of the Rules on Government Reorganization provides that, "Any officer or employee aggrieved by the appointments made may filean appeal with the appointingauthority within ten (l0) days from the lastday of postingof the appointments by the Personnel Officer . . ." Assuminghowever, that the protest was filed within the period prescribed therefor, it cannot,justthe same be given due course.Records show that protestant- appellantis notan incumbent of the subjectposition.Neither was he a holder of a higher level position than herein appellee. His position of Revenue Enforcement Officer (Grade 16) before the BIR reorganization is of the same level, rank and salary to the Revenue Fiscal Officer (Grade16) held by herein appellee. Such being the case,in the absence of a showing that a holder of a higher level position protested subjectappointment in time and/or abuseof authority or discretion was committed in issuingsaid appointment,the choice of the appointing authority is hereby upheld. WHEREFORE, the instantappeal of Mr. Florencio P. Salles is hereby dismissed for lack of merit. Unfazed, petitioner Salles senta letter dated August 14, 1989 to BIR Commissioner Jose U. Ong protesting defendant Francisco'snewappointment as Chief Revenue Officer,Fiscal Operations Branch,BIR Legaspi City effective November 1, 1988. Whilethe aforesaid protestof Salles was still unresolved by the Officeof the BIRCommissioner, Commissioner Ong permanently appointed defendant Francisco to the contested position of Chief Revenue Officer III effective June 27, 1989. The Committee on Contested Appointments, Bureau of Internal Revenue, where the protest of petitioner was indorsed informed plaintiff thatitfound no substantial reasonsto reconsider the Resolution of the Civil ServiceCommission in CSC CaseNo. 178 promulgated on March 6, 1989. Petitioner appealed said rulingto the Merit System Protection Board of the Civil ServiceCommission, which likewisedismissed his appeal 3 on the ground of res adjudicata. Hence, the instantpetition. We find no merit in the petition. Section 19(3) of P.D. No. 807 provides:
- 11. that when avacancy occurs in a position in thesecond level of the Career Service as defined in Section 7, the employees in the government servicewho occupy the next lower positions in theoccupational group under which the vacantpos ition is classified and in other functionally related occupational groups and who are competent, qualified and with the appropriatecivil serviceeligibility shall be considered for promotion. Paragraph 4 of the same section likewiseprovides: that each department or agency shall evolveits own screeningprocess,which may includetests of fitness,in accordancewith the standards and guidelines setby the Commission and that promotion boards shall beformed to formulate criteria for evaluation,conducttests and/or interviews,and make systematic assessmentof trainingand experience. The position of Chief Revenue Officer III to which Francisco was appointed on June 27, 1989 falls under the second level of the career service(Sections 5 and 7, Civil Servi ceLaw). Plaintiff,however, questions defendant Francisco'sappointment to the said position upon the claimthatonly CPAs are qualified for appointment to the said position as thefunctions and duties of such newly created office or position under the Reorganization Act categorically falls under Accountantpositions in the Accounting Occupational Group and equivalentpositions in allied occupational groups,theduties of which falls squarely within themeaning of the practiceof Accountancy, as defined in the Accountancy Board Law and the Revised Accountancy Law, and petitioner being a CPA, is the one qualified and entitled to be appointed to the position in question and not respondent Francisco. The lawin point is Civil ServiceMemorandum CircularNo.17 S. 1987 which deals specifically on the subject"Requirements of RA 1080 (CPA) Eligibility for Appointment to Accountant and Equivalent Positions in Allied Occupational Groups in the Government" which reads as follows: Pursuantto CSC Resolution No. 87-388 dated October 20, 1987 and the pertinent provisionsof Presidential DecreeNo. 692, otherwise known as the Revised Accountancy Law of 1976 which regulates the practiceof Accountancy, the followingpolicies relativeto the appropriatecivil serviceeligibility requirement for appointment to Accountant positions and other allied second level positionsthe duties of which involvepracticeof the accountancy profession as defined under said Decree, are hereby adopted, to wit: "1. R A 1080 (CPA) eligibility shall berequired for appointment to the position of Accountant, and equivalent positions in allied occupational groups theduties of which involvethe practiceof Accountancy in the followinggovernment agencies: a). Executive Departments, includingtheir bureaus/offices/regional offices/attached agencies; xxx xxx xxx 2. For Second Class or lower class cities,provinces,and municipalities,RA 1080 (CPA) eligibility shall only be required for permanent appointment to the position of Chief of the Accounting Division or other Chiefs of Divisions the duties of which involve the practice of the accountancy profession. For Accountant positions lower than the Chief of the Accounting Division or its equivalent, Career Service (Professional) eligibility may be considered, provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, major in Accounting. 3. Incumbents of positions mentioned above who have been appointed under PERMANENT STATUS before the effectivity of this Memorandum Circular on the basis of their civil service eligibilities previously considered appropriatefor those positions, shall retain their permanent status.However, they may no longer be promoted to higher positions in these occupational groups requiringRA 1080 (CPA) eligibility as mentioned above until they meet such eligibility requirement. 4. In the absenceof an RA 1080 (CPA) eligibleand itbecomes necessary in the public interestto fill a vacancy of an Accountant position and/or other positions in allied occupational groups,a non-CPA may be appointed as Temporary to the position involved provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration,major in Accounting, and provided further that such temporary appointment shall notexceed twelve (12) months and that the appointee may be replaced sooner if a qualified RA 1080 (CPA) eligiblebecomes actually and immediately availablefor employment. It is clear thatR.A. 1080 (CPA) eligibility shall only be required for permanent appointment to the position of Chief of the Accounting Division or other Chiefs of Divisions,the duties of which involve the practiceof the accountancy profession and thatfor accountantposition lower than the Chief of the Accounting Division or its equivalent,the career service(Professional) eligibility may be considered,provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration,Major in Accounting.
- 12. In the caseatbar,petitioner has not shown that the position of Chief Revenue Officer of the Fiscal Operations Branch of the BIR, Legaspi City fallswithin the category of Chief of the Accounting Division of the BIR. In the absence thereof, the career service(Professional) eligibility of respondent Francisco may be considered sufficientqualification for the contested position. Moreover, in the appointment or promotion of employees, the appointingauthority considers not only their civil serviceeligibilitiesbutalso their performance, education, work experience, trainings and seminars attended, agency examination and seniority.Consequently, the appointingauthority has the rightof choicewhich he may exercise freely accordingto his best judgment, decidingfor himself who is best qualified amongthose who have the necessary qualificationsand eligibilities. 4 The final choiceof the appointingauthority should be respected and left undisturbed The court should not substituteits own judgment to that of the appointingauthority. WHEREFORE. the petition is dismissed for lack of merit. Costs againstpetitioner. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur. Footnotes 1 83 O.G. 17, p. 2009,April 27,1987. 2 Salles vs.Niceforo Francisco,CSC Case No. 178,March 6, 1989. 3 The pertinent portions of the decision read,as follows: Upon careful evaluation of the records of the case,this Board found that the instant appeal of Mr. Salles is buta reiteration of his previous appeal with the CSC against the same appointment. Followingthe principleof res adjudicata this Instantappeal must fall. WHEREFORE, for lack of merit, the appeal of Florencio Salles ishereby dismissed. 4 Pamantasan ngLunsod ng Maynila v.CA, G.R. No. L-65439,140 SCRA 22 (1985). G.R. No. 124374 December 15, 1999 ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. G.R. No. 126366 December 15, 1999 ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents. YNARES-SANTIAGO, J.: Before this Court are three, consolidated petitions 1 filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed. During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents 2 to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972. On February 23, 1990,the Secretary of Justice rendered Opinion No. 33,stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling inTanada vs. Tuvera 3 the presidential decree is deemed never "in force or effect and therefore cannot at present,be a basis for establishment of the CSUs . . . ." 4 On June 4, 1990,the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential
- 13. Decree No. 51on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140,Series of 1990,which established the Department of Public Order and Safety ("DPOS"). At the heart of these petitions is Section 3 of the Ordinance which provides: Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Emphasis ours). Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991.The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. On May 11, 1992,petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992,Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew. We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly. G.R. No. 124374 and G.R. No. 126366 After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140,Series of 1990,5 and ordering their reinstatement to their former positions in the DPOS. 6 Petitioner brought petitions for certiorari to this Court, 7 to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95,the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council orsanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint restsexclusively with the local chief executive and thus cannot be usurped by the city council orsanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments." 8 We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. 9 The power of the city council or sanggunian, on the other hand, is limited to creating,consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio inius est exclusio alterius. 10 Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases, 11 we have consistently ruled
- 14. that the CivilService Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. The Ordinance refersto the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for the exercise of discretion. In Farinas vs. Barba, 12 we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is adiscretionary power. When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment. 13 This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a discretionary power and must be performed by the officer in which it is vested." 14 The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr., to reinstate private respondents. Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. In its decision of March 21, 1996 the Court of Appeals held: It is clear however, that Ordinance No. NC-140, absorbing the "present personnel of the Civil Security Agent Unit" in the DPOS was earlier enacted, particularly on March 27, 1990,thus, private respondents were still holders of de jure appointments as permanent regular employees at the time, and therefore,by operation of said Ordinance private respondents were automatically absorbed in the DPOS effectively as of March 27, 1990. 15 (Emphasis ours.) The decision is based on the wrong premise. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner correctly points out, 16 the private respondents' appointments in the defunct CSU — were invalid ab initio. Their seniority and permanent status did not arise since they have no valid appointment. For then to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil Service Commission. Being then not members of the Civil Service as of June 4, 1991,they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Emphasis ours). It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. 17 Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. In Debulgado vs. Civil Service Commission 18 we held that "a void appointment cannot give rise to security of tenure on the part of the holder of the appointment." While the Court of Appeals was correct when it stated that "the abolition of an office does not mean the invalidity of appointments thereto," 19 this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The non-renewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service Commission 20 we treated temporary appointments as follows: The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Emphasis ours.) Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed. 21We note that Section 1 of Ordinance NC-140 provides:
- 15. There is herebyestablishedin the Quezon City Government the Department of Public Order and Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance. A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twentySecurity Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or "renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354 In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that "every action must be prosecuted or defended in the name of the real party in interest." 22 A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In Ralla vs. Ralla we defined interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest."23 As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action. In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non- reinstatement. We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy24 which overturned our rulings in Paredes vs. Civil Service Commission 25 Mendez vs. Civil Service Commission 26 and Magpale vs. Civil Service Commission. 27 In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be over emphasized. The subject of the present case, on the other hand, is "reinstatement." We fail to see how the present petition, involving as it does the reinstatement or non- reinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply. To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi- judical body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review." 28 In instituting G.R. No. 126354,the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated functions is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," 29 not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354. WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE. The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED. No costs. SO ORDERED.
- 16. Davide, Jr., C.J., Bellosillo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur. Melo and Vitug, JJ., in the result. Footnotes 1 In G.R. No. 124374,petitioner Mayor Mathay questions the decision of the Court of Appeals which upheld Resolution No. 95-3003 dated April 25,1995 of the Civil Service Commission and ordered the reinstatement of private respondents to their former positions at the Department of Public Order and Safety ("DPOS") under permanent status or to comparable positions in the said agency. In G.R. No, 126354,petitioner Civil Service Commission assails the decision of the Court of Appeals which annulled and set aside its Resolution Nos. 955040 and 93- 2732. In G.R. No, 126366,the assailed decision of the 15th Division of the Court of Appeals found no grave abuse of discretion amounting to lack or excess jurisdiction on the part of public respondent Civil Service Commission when it issued Resolution Nos. 92-1974 and 94-0902 ordering petitioner Ismael A. Mathay to reinstate private respondent Sandy Marquez to a position in the DPOS without dimunition in salary or position. 2 In G.R. No. 124374 Private respondents are Eduardo A. Tan, Lourdes M. de Guzman, Manuel Chua, Anselmo Mateo, Christopher Santos, Buenaventura Punay, Enrico Bandilla, Felino Camacho, Dante E. Deoquino, Jaime P. Urcia, Jesus B. Regondola, Romualdo Liberato, Cesar Franciso, William Panti Jr., Michael A. Jacinto and Cesar Dacio. In G.R. No. 126366 private respondent is Sandy Marquez. In G.R. No. 126354 there is no private respondent (Jovito C. Labajo did not appeal from the order of the Court of Appeals). 3 148 SCRA 446 (1986). 4 Opinion No. 33 of the Secretary of Justice, February 1991. 5 CSC Resolution No. 92-1974 (G.R. No. 126366). 6 CSC Resolution No. 95-3003 (G.R. Jo. 124374). 7 G.R. Nos. 114320 and 120442. 8 Page 8 of the Fifteenth Division of the Court of Appeals Decision dated January 15, 1996 citingSinco. Political Law, 1949 ed. pp. 154-155 citing State vs. City of Maulcato, 136 N.W. 164, 41 L.R.A.N.S. 111; People vs. Provinces 35 Cal. 520. 9 Sec. 1719 of B.P. 337 provides that, "the city mayor shall . . . appoint in accordance with Civil Service law, rules and regulations all officers and employees of the city, whose appointments are not otherwise provided in this Code." 10 The express mention of one thing in a law will, as a general rue, mean the exclusion of others not expressly mentioned. This rule as a guide to probable legislative intent is based upon rules of logic and the natural workings of the human mind (Tavora vs. Gavina, 79 Phil. 421). 11 Orbos vs. Civil Service Commission, 189 SCRA 459 (1990); Villanueva vs. Balallo, 9 SCRA 407 (1963); Santos vs. Chito, 25 SCRA 343 (1968); Said Benzar Ali vs. Teehankee, 46 SCRA 728 (1972); Luego vs. Civil Service Commission, 143 SCRA 327 (1986); Central Bank vs. Civil Service Commission, 171 SCRA 741 (1989). 12 256 SCRA 396 (1996). 13 Gloria vs. Judge de Guzman, G.R. No. 116183,October 6, 1995. 14 227 SCRA 320 (1994). 15 Rollo (G.R. 124374),p. 47. 16 Rollo (G.R. 12633),p. 32. 17 Aparri vs. Court of Appeals, 127 SCRA 234 (1984). 18 263 SCRA 184 (1996). 19 Rollo (G.R. 126366),p. 21. 20 197 SCRA 168 (1991). 21 The defunct CSU consisted of 64 positions, to wit: Number of Positions Title of Position Monthly Salary 1 Office Head P12,650.00
- 17. 1 Assistant Dept.Head III P11,385.00 2 Security Officer IV P8,250.00 20 Security Officer II P4,418.00 2 Security Agent II P3,102.00 9 Security Agent I P2,752.00 24 Security Guard II P2,355.00 1 Clerk III P2,473.00 2 Clerk II P2,250.00 1 Driver P2,250.00 1 Utility Worker P2,000.00 ———— 64 Positions While the Intelligence and Security Division of the DPOS created to replace the defunct CSU (p. 1 of Ordinance NC-130)is composed of the following positions: Number of Position Title of Position Monthly Salary 1 Chief, Intelligence & Security Officer P10,135.00 1 Asst. Chief Intelligence & Security Officer P8,250.00 1 Security Officer III P5,670.00 1 Special Police Area Supervisor P5,670.00 1 Security Officer II P4,418.00 1 Asst. Spl. Police Area Sv P4,418.00 4 Security Agent II P3,102.00 60 Security Agent I P2,752.00 1 Clerk III P2,473.00 10 Special Police Corporal P2,473.00 1 Clerk II P2,250.00 200 Special Policemen P2,250.00 ———— 282 Positions 22 Rule 3, Section 2, 1997 Rules on Civil Procedure. 23 199 SCRA 497 (1991). 24 G.R. No. 135805,April 29, 1999. 25 192 SCRA 84 (1990). 26 204 SCRA 965 (1991). 27 215 SCRA 389 (1992). 28 Judge Calderon vs. Solicitor General, 215 SCRA 876 (1992). 29 Chapter 3, Section 12 (11). The Revised Administrative Code of 1987 on the Civil Service Commission. G.R. No. L-25491 February 27, 1968
- 18. BIENVENIDO F. REYES,petitioner-appellee, vs. ROMEO G. ABELEDA, SECRETARY OF EDUCATION, DIRECTOR OF PUBLIC SCHOOLS, COMMISSIONER OF CIVIL SERVICE & CASHIER AND DISBURSING OFFICER OF THE BUREAU OF PUBLIC SCHOOLS,respondents-appellants. Cecilia B. Magadia, Jr. for petitioner-appellee. Office of the Solicitor General for respondents-appellants. FERNANDO, J.: This petition, filed with the Court of FirstInstanceof Manila,for certiorari and mandamus with preliminary injunction,callsfor the determination of who, under the Civi l ServiceLaw, 1 has the right to a promotion to fill a vacancy in a competitiveor classified position in the government as the person "next in rank"likewise"competent and qualified to hold the position and possessed of an appropriatecivil serviceeligibility.. . ." The facts are not in dispute, the casehavingbeen submitted before the lower court on a stipulation of facts.Thus:"That sinceJune 15, 1939 and continuously up to the present, the petitioner has been employed in the government, particularly,in the School FinanceDivision,Bureau of Public Schools,sinceJuly 25,1940,. . . whilerespondent Abeleda has been in the government servicesinceAugust 16, 1937,. . . , that on August 2, 1962, the petitioner was lastappointed as Acting Budget Officer III atP5,376 per annum, in the School FinanceDivision,Bureau of Public Schools,. . . , whilerespondent Abeleda was lastappointed as Budget Officer III in the Medical and Dental Services Division,sameBureau, at P5,376 per annum effective July 1, 1962; that in a Memorandum dated December 10, 1962,the Director of Public Schools submitted to the Secretary of Education an assignment proposal recommendingthe promotion of petitioner to the position of Budget Officer IV,. . . ; that in a firstindorsement dated December 19, 1962 of the respondent Secretary of Education to the respondent Director of Public Schools,the former requested the latter for 'appropriaterankinglists' ... ; that in a 3rd indorsement dated January 7, 1964, the Secretary of Education instructed the respondent Director of Public Schoolsto prepare an appointment proposal in favor of respondent Romeo G. Abeleda to the position of Budget Officer IV; that in the 4th indorsement dated January 23, 1964,the petitioner was informed of the respondent Secretary's action on the basic proposition for the promotional appointment of petitioner . . . ; that on February 10, 1964,petitioner filed a formal protest with respondent Commissioner of Civil Servicecontesting the appointment of respondent Romeo G. Abeleda to the position of Budget Officer IV in the Bureau of Public Schools,School FinanceDivision,.. . ; that the protest was resolved by the respondent Commissioner of Civil Serviceagainstpetitioner,. . . ; that respondent Romeo G. Abeleda was promoted from Budget Officer III,School Medical and Dental Services,to Budget Officer,IV, School FinanceDivision,.. . ." After setting forth the facts and consideringthe law, the conclusion reached by the lower court was set forth thus: "In view, therefore, of the foregoing, it appearingthat the petitioner has the necessary qualificationsto the position of the Budget Officer IV, Division of School Finance,Bureau of Public Schools;thathe is the officer next in rank in said division to that vacantposition;respondent Abeleda is not of equal rank in said division,he,belonging to another independent, separate division, that in point of authority, responsibility and importance,the Budget Officer III of the School Finance Division outranks and ismoreimportant than its counterpart in the Medical and Dental Services Division,theappointment and promotion, therefore, of respondent Romeo G. Abeleda, to fill the vacantposition of Budget Officer IV, School FinanceDivision,was in error,in violation of the Civil Service Law on the point,and in excess of the exercise of legal discretion on the part of the respondent Secretary of Education and the Commissioner of Civil Service."The lower court decision was to this effect: "1. The appointment of Romeo Abeleda as Budget Officer IV, Division of School Finance,Bureau of Public Schools,is hereby declared null and void and,therefore, set aside;2. That the respondents Secretary of Education and Commissioner of Civil Serviceareordered to approve the appointment of the petitioner, Bienvenido F. Reyes, as recommended by the Director of Public Schools." Not being satisfied with the above decision,which to his mind was an erroneous interpretation of the above legal provision and a denial of his rightto said position,respondentAbeleda alongwith the Secretary of Education,the Director of the Bureau of Public Schools and theCommissioner of Civil Service, appealed to this Court. If the lawcorrectly construed be applied to the above facts,the judgment of the lower court must be reversed; the appointment made in favor of respondent Abeleda by the Secretary of Education must prevail. As noted at the outset, a person next in rank, competent and qualified to hold the position and possessingan appropriatecivil serviceeligibility is entitled to a vacancy occurringin any competitive or classified position in thegovernment. There is the proviso however that should there be two or more persons under equal circumstances,seniority mustbe given preference.2 As between petitioner Reyes and respondent Abeleda, who is the person next in rank? Both as admitted in the Brief of petitioner are in the rankinglist,beingBudget Officers III,the petitioner in the School Finance Division and respondentAbeleda in the Medical Dental Services Division of the Bureau of Public Schools.Petitioner however, as was set forth in the stipulation of facts 3 washoldingsuch officein an actingcapacity,unlikerespondentAbeleda whose tenure had permanency. Under the above circumstances itcannotbe said thatpetitioner was the person next in rank. Even on the assumption however that both petitioner Reyes and respondent Abeleda could be considered,in the language of the law,"as persons of equal circumstances"still respondent's appointment by the Secretary of Education could not be declared illegal as thevery same proviso makes clear that seniority shall begiven preference. There was no denial of the statement in the Brief of respondent Abeleda about his seniority,havingbeen appointed in the government serviceon August 8, 1937 whilepetitioner did not join the government until June 15, 1939, havingbeen assigned thereafter to the School FinanceDivision on July 25,1940. 4
- 19. Now as tothe dischargeof the functions of Budget Officer III.Whilepetitioner was appointed in an actingcapacity on August 21, 1962,respondent Abeleda assumed such position with a permanent status earlier,namely,on July 1, 1962.The right to the promotion then had been earned by respondent Abeleda. There was precisely compliancewith,not deviation from, the applicable statutory provision,with the appointment extended to him by respondent Secretary of Educati on. There is this further point to consider.Referring to the very same section, this Court, in Pilar v. Secretary of Public Works and Communications, 5 speakingthrough JusticeDizon stressed that "the appointingpower enjoys sufficientdiscretion to select and appointemployees on the basis of their fitness to perform the duties and assumethe responsibilities of the position to be filled .. . ." Passing on the power of the Commission on Elections to appointelection registrars,this Courtin Amponin v. Commission on Elections, 6 the opinion beingpenned by Justice Castro,could fitly summarizethe law thus: "Finally,consideringthatthe power to appointis in essence discretionary,and that there is here absent a showingthat in the exerciseof the right of choicethe [Commission on Elections] abused its discretion,we will not even attempt to substituteour own discretion for that exercised by [it]." It would seem fairly obvious then that the lawdoes not imposea rigid or mechanisti c formula on the appointingpower, compliancewith which is inexorableand a deviation therefrom fatal.Far from it. If there be adherence to the concept that public officeis a public trust,as there ought to be, the criterion should bewhat public welfaredemands, what satisfies publicinterest.For itis axiomatic that public needs could best be attended to by officials,aboutwhose competency and ability there is no question. To that overmastering requirement, personal ambition mustof necessity yield. Discretion if not plenary,at leastsufficient,should thus be granted to those entrusted with the responsibility of administeringtheofficers concerned, primarily thedepartment heads. They are in the most favorableposition to determine who can best fulfill the functions of the office thus vacated. Unless,therefore, the lawspeaks in the most mandatory and peremptory tone, consideringall the circumstances,there should be, as there has been, full recognition of the wide scope of such discretionary authority.Happily,there is nothingin the Civil ServiceAct, which is fittingly concerned with protecting the rights of those in the career service,that, rightly construed, callsfor a different conclusion.Itis well worth repeating that the broad authority of a department head appears indisputable.Such is the policy of the law,a policy reflected with fidelity in the decisions of this Court. WHEREFORE, the judgment of the lower court is reversed and the petition for certiorari and mandamusdenied. With costs againstpetitioner. Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur. Concepcion, C.J., is on leave. Footnotes 1Section 23 of Republic Act No. 2260. 2Section 23, Republic Act No. 2260. 3Paragraph 2,Stipulation of Facts. 4Brief for respondents-appellants,p.26 and stipulation of facts. 5L-21039,February 18, 1967. 6L-27420,September 29, 1967. G.R. No. L-17745 October 31, 1963 ANTONIO VILLANUEVA, petitioner, vs. FELIX BALALLO, respondent. Luis Bello, Jr. for petitioner. Buenaventura Martinez for respondent. CONCEPCION, J.: This is an appeal froma decision of the Court of FirstInstanceof Il ocos Sur involvingpurely questions of law. The main facts are set forth in said decision,fromwhich we quote: On November 24, 1959,14 days after the general elections of November 10, 1959,Inocencio Espiritu,the chief of policeof the municipality of Santa,Ilocos Sur,resigned effective at the closeof officehours on that day for the reason that he wanted to seek another job (Exh. E). Jose Burgonio, the incumbent mayor then on December 28,1959, three days before his term expired on December 31, 1959 extended an appointment to the petitioner Antonio Villanueva as chief of policeof Santa, Ilocos Sur (Exh. A). On the same date, the provincial treasurer of Ilocos Sur as deputy of the Commissioner of Civil Serviceand pursuantto the provision of Republic Act No. 2260 approved the appointment. On December 30, 1959,the petitioner Antonio Villanueva took his oath of officeas chief of policeof Santa,Ilocos Sur before the then mayor Jose Burgonio (Exh. 1). It also appears that the appointee Antonio Villanueva isa civil serviceeligiblehavingpassed the examination for patrolman (qualifying) on October 2, 1937 with a ratingof 86.5 per cent (Exh. J). On January 5, 1960 Jesus R. Bueno, newly elected mayor of Santa, Ilocos Sur,atthe election of November 10, 1959, extended an appointment to Atty. Felix Balallo for thesame position of chief of police"viceMr. Inocencio Espiritu,resigned"(Exh. 2). The record shows that Atty.
- 20. Balallo is alsoa civil serviceeligibleper his application to be entered in the register of eligibles pursuantto the provisions of Republic ActNo. 1080, as amended by Republic Act 1844 (Exh. 1). Before the former appointment of the petitioner Antonio Villanueva could be finally attested by the Commissioner of Civil Serviceon March 4, 1960 the Commissioner of Civil Serviceapproved the appointment of the respondent Atty. Felix Balallo subjectto the usual physical and medical examination and to the availability of funds,that is,provided the former incumbent Inocencio Espiritu has no more leave with pay to his credit. Sincethe appointment of the petitioner Antonio Villanueva hehas been performing his duties as chief of policeof Santa and receivingthe emoluments therefor. However, the provincial auditor has annotated in the payroll thatthe payment of the petitioner's salary is subjectto reimbursement if and when the matter is decided againsthim.In view of this predicament, the Commissioner of Civil Servicein his 4th indorsement dated May 13, 1960 to the provincial treasurer (Exh.5) finally decided that the attestation made by the provincial treasurer under section 20, Republic Act 2260 is not final for itis subjectto review by the Commissioner of Civil Service;that the appointment made to Antonio Villanueva has been revoked upon the appointment of Atty. Felix Balallo to the same position.By virtue of the aforementioned indorsement (Exh. 5), Mayor Jesus Bueno advised the petitioner Antonio Villanueva "... to cease rendering further servicein the PoliceDepartment ... and to return all the property of the said department...to the municipal treasurer."(Exh. 7). On June 3, 1960,the petitioner filed this quo warranto proceedings and as prayed for, the Court on June 6, 1960 issued the writof preliminary mandatory injunction upon the petitioner filinga bond in the sum of P2,000. (Record pp. 91-93). In due course, the Court of FirstInstanceof Ilocos Surrendered judgment sustainingtheaction taken by the Commissioner of Civil Serviceand,accordingly,dismissingthe complaintwithout costs,as well as dissolvingthe writof preliminary injunction issued by said courton June 7, 1960. Hence, this appeal by Villanueva. The decision appealed fromis mainly based upon our rulings in Gorospe vs. Secretary of Public Works and Communications, G.R. No. L-11090 (January 31, 1959) and Cui vs. Ortiz, G. R. No. L-13753 (April 29, 1960),but these cases arenot in point. The firstinvolved an employee who had been found guilty of certain irregularities and, accordingly, ordered dismissed by the Commissioner of Civil Service, for which reason a subsequent appointment in favor of the same employee was disapproved by the Commissioner of Civil Service, said previous dismissal being a ground for the disapproval of the new appointment, under Section 5 Ruleof the Civil ServiceRules,reading: 5. The Commissioner may, in his discretion,refuseto examine an applicant,or to certify or attest an appointment of an eligible,who is physically unfitfor the performance of the duties of the position to which he seeks appointment; or who has been guilty of a crime, or of infamous,notoriously disgraceful,or immoral conduct,drunkenness, or dishonesty; or who has been dismissed from the service for other deliquency or misconduct; or who has intentionally madea falsestatement in any material fact, or practiced or attempted to practiceany deception or fraud in securinghis examination,registration,or appointment. Any of the foregoing disqualifications shall be good cause for the removal of the person from the service after his appointment. Indeed, if the grounds for disqualification enumerated in the foregoing provision are,likewise, grounds for removal, itfollows that the refusal of the Commissioner of Civil Serviceto approve the appointment of Gorospe was fully justified for itwould serve no useful purpose to approve the appointment and, atthe sametime, to remove the appointee. Petitioner herein does not fall, however, under any of the aforementioned disqualificationsor causes for removal. Neither is the second casecontrollingin the one at bar for the appointment involved in the Cui case required the approval of the President which was not secured by him. Hence, his appointment was not completed. The appointment in the present casedid not requiresaid approval of the President. In fact, Mayor Burgonio had applied for presidential authority to fill the vacancy resultingfrom the resignation of Inocencio Espiritu as Chief of Policeof Santa,and the Officeof the President replied statingthat said "authority ... is notnecessary". The issuein this casehinges on the role of the Commissioner of Civil Serviceunder the provisions of the Civil ServiceAct requiringhis attestation to appointments made in the civil service.As stated by this Court in the Gorospe case(supra), the appointment of an employee in the civil service"must be submitted to the Commissioner of Civil Servicefor approval to determine whether the prospective appointee is qualified to hold the position." In the languageof former Deputy Commissioner of Civil Service, Gregorio Rasalan (in hisbook on the PhilippineCivil ServiceLaw,pp. 27 and 28): If the appointee concerned is a civil serviceeligibleand otherwisequalified for the position and the appointingauthority has already performed all the acts necessary to make the appointment complete, a probational,promotional,transfer or re-instatement appointment may not be withdrawn without the consent of the appointee. ... Pursuantto lawand regulations an appointment in the servicemust be submitted to the Commissioner of Civil Servicefor determination whether the proposed appointee is qualified to hold the position..... When the appointee is qualified,as petitioner herein admittedly is,then the Commissioner of Civil Service has no choice but to attest to the appointment. It has been repeatedly held that an appointment becomes complete upon the performance of the lastactrequired by lawof the appointingpower. The attestation required of the Commissioner of Civi l Serviceis merely a check to assurecompliancewith the civil servicelaws.In fact,upon attestation by the provincial treasurer the appointee may collectthe correspondingsalaries,although subjectto the condition that, if the Commissioner of Civil Serviceshould later on properly reject the appointment by reason of lack of eligibility,as provided in said Section 5,Rule II,of the Civil ServiceRules,then the appointment shall lapse,despite the aforementioned attestation by the provincial treasurer.This notwithstanding,the
- 21. amounts collected bythe appointee, by way of salary,priorto notice of the unfavorableaction taken by the Commissioner of Civil Service,shall bedeemed validly paid to said appointee.This goes to show that the appointment in question is notonly valid,but,also,complete prior to said notice,for, otherwise, said payment could not be deemed legally made. WHEREFORE, the decision appealed fromis hereby reversed, and another one shall beentered grantingthe writ prayed for and declaringthatpetitioner Antonio Villanueva is theduly appointed and qualified chief of policeof the Municipality of Santa,Ilocos Sur;that, as such,he is legally entitled to perform the powers and duties of said officeand to receive the emoluments attached thereto; and that respondent Felix Balallo has no rightto said officeand,consequently, orderinghim to yield the same to the aforementioned petitioner, as well as to refrain from obstructingor interferingin any manner whatsoever in the dischargeby the latter of the functions of said office,with costs against said respondent. It is so ordered. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur. G.R. No. L-39451 February 20, 1989 ISIDRO M. JAVIER, petitioner-appellee, vs. PURIFICACION C. REYES, respondents-appellant.** Victorino B. Aldaba for petitioner-appellee. Jesus R. Mabagosfor respondent-appellant. SARMIENTO, J.: Before the Court is a certified case involvingpurequestions of law. The facts,as found by the trial court, are as follows: ...It is alleged that petitioner was the duly appointed Chief of Policeof Malolos, Bulacan,on November 7, 1967 by the then Mayor Victorino B. Aldaba,which appointment was confirmed and approved by the Municipal Council of the said municipality on the same date as per Resolution No. 210,Series of 1967; that the followingday,petitioner took his oath of officeand thereafter assumed and discharged the rights,prerogatives and duties of the office; that on January 3, 1968, pending approval and attestation of his appointment by the Civil Service Commission,respondent, who had then assumed the officeof Municipal Mayor, recalled petitioner's appointment from the Civil ServiceCommission in her letter of said date; that not satisfied with her letter of recall,respondent summarily, arbitrarily and illegally ousted and relieved petitioner as Chief of Policeand atthe same time, designated PoliceLt. Romualdo F. Clements, a non-eligible,as Officer-in- Charge of the PoliceDepartment, in her memorandum dated January 12,1968, that on February 2, 1968,pursuantto the letter of recall,theCivil ServiceCommission returned the appointment papers of petitioner without action, duly excepted to by petitioner in his motion for reconsideration dated February 16, 1968; that on May 2, 1968,the Civil ServiceCommission attested and approved the appointment of petitioner as such Chief of Police,in its 3rd Indorsement, pertinent porti on of which reads as follows: In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan,in its meeting of September 26, 1967,notifyingthis Officethat the appointment of Mr, Bayani Bernardo as Chief of Policeof Malolos has not been confirmed by said Council,and as the consent of the Municipal Council isa mandatory requirement under Section 1 of Rep. Act 1551, the said appointmentis considered null and void.In view thereof, the attached appointment of Mr. Isidro M. Javier has been approved as permanent under Section 24 (b) of R.A. 2260...; that in its letter to respondent dated July 9, 1968 wherein its rulingcontained in the aforequoted 3rd Indorsement was reiterated, the Civil ServiceCommission directed respondent "that steps be taken immediately to install Mr.Javier as Chief of Police of that Municipality (Malolos)";thatnotwithstandingthe aforementioned ruling and directive, respondent neglected and refused to reinstate petitioner to tile position of Chief of Policeof Malolos which actis specifically enjoined upon her as Municipal Mayor and publicofficer,in Sec. 19, ArticleIV of Rep. Act 2260 otherwise known as the Civil ServiceAct o)f 1959;that as a resultof respondent's refusal to perform the actenjoined upon her by law, petitioner was deprived of his salary sinceNovember 8, 1967 up to his ouster on January 13, 1968 and from then on up to the present; that as a further consequence of the inaction of respondent, petitioner suffered social humiliation and embarrassment,was exposed to public ridicule,causinghimmental anguish thereby sustainingmoral damages in the amount of P5,000.00 and was forced to engage counsel to prosecute his rights for the sum of Pl,000.00 attorney's fees. Respondent denies the material allegationsof the petition and as special and affirmativedefenses alleges that one Bayani Bernardo was appointed Chief of Policeof Malolos by the then Mayor Jovencio C. Caluagon September 4, 1967; that likewise,Isidro M.Javier,petitioner herein, was appointed Chief of Policeof the same municipality on November 8, 1967 by the then Mayor Victorino B. Aldaba, both of which appointments were approved by the Civil ServiceCommission;thatin justifyingthe approval of the appointment of Bayani Bernardo,despite lack of
- 22. consent of theMunicipal Council,theCivil ServiceCommission stated in its 7th indorsement dated January 17, 1968,as follows: ...The non-retention of the phrase"With the consent of the Municipal Council " found in Section lf of the Republic Act No. 1551 (effective June 16, 1966) which, insofar as pertinent,x x x only shows the clear intention of the lawmakingbody to amend the provision firstabovequoted by the PoliceAct of 1966 which vest in the Mayor the soleauthority to appoint members of the policeforce with exception of course, of cities whosecharters may require the participation of the council in such matters. Furthermore, the Decentralization Act of 1967 (effective September 12, 1967) does not requirethe consent of the Municipal Council on the appointment of policemen. ... that the same Commission,however, in approvingthe appointment of petitioner Isidro Javier,stated in its 3rd indorsement of May 2, 1968,as follows: ... In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan,in its meeting of September 26, 1967 notifyingthis Officethat the appointment of Mr. Bayani Bernardo Chief of Policeof Malolos,Bulacan has not been confirmed by said Council asthe consent of the Municipal Council is a mandatory requirement under Sec. 1 of Republic Act 1551,the said appointment is considered null and void.In view thereof, the attached appointment of Mr. Isidro M. Javier has been approved ... that in view of the obvious conflictof both actions of the Civil ServiceCommission which virtually renders the two appointments apparently valid,respondentis placed in a set of circumstances wherein her action in favor of either of the appointees may render her personally liablefor salaries and other damages in favor of the other. Havingbeen granted the rightto intervene, Bayani Bernardo moved to dismiss the petition on the grounds that the causeof action of petitioner has already prescribed and/or is barred by the Statute of Limitations and that the present petition is not founded on a clear,complete, undisputed and indubitablelegal right.However, havingbeen filed out of time, the motion to dismisswas notresolved and intervenor was declared in default in the order of this Court dated September 26,1969. The followingfacts havebeen admitted by the parties:that petitioner Isidro M. Javier was appointed Chief of Policeof Malolos,Bulacan on November 7,1967 by the then Mayor Victorino B. Aldaba,and approved by the Civil ServiceCommission on May 2, 1968; that petitioner took his oath of office as such on November 8, 1967 and immediately assumed the position and discharged his duties until January 13, 1968 when he was separated from officeby respondent Municipal Mayor Purificacion Reyes; that respondent recalled the said appointment of petitioner on January 3,1968 pursuantto which said appointment was returned by the Civil Service Commission returninghis appointment on the basis of which the said commission reconsidered the same and approved his appointment on May 2, 1968; that sinceMay 2, 1968 to the present, respondent has not reinstated the petitioner notwithstandinga follow-up letter circulardated July 9, 1968 of the Commission of Civil Service,directingthe immediate reinstatement of petitioner; that one Bayani Bernardo was also appointed Chief of Policeof Malolos,Bulacan on September 4,1967,approved by the Commissioner of Civil Serviceon September 17,1967;and that said appointment of Bayani Bernardo by the then Mayor Jovencio Caluagwas not referred to the PoliceCommission for decision.(pp.164-168,Record) 1 The legal questions involved areas follows: (1) When an appointment to the position of municipal chief of policewas made by a municipal mayor and said appointment was not approved by the municipal council and such lack of approval lasted for more than ninety (90) days from the issuanceof the appointment, will Sec. 8 of R.A. 4864, otherwise known as the PoliceAct of 1966 apply? (2) When two appointments to one and the same position were both approved by the Civil ServiceCommission on the basisof two legal provisions,which one will prevail over the other ? (Pp. 1-2, Appellant's Brief) 2 The Court finds that preeminently, the question is:Between the petitioner's appointment and that of Bayani Bernardo,which prevails? It shall berecalled thatthe petitioner was appointed Chief of Policeof Malolos,Bulacan,on November 7, 1967, by then Mayor Victorino Aldaba and the followingday,took his oath of office. He discharged the powers of the office until January 13,1968 when the respondent, who had meanwhile succeeded as local chief executive, and in an apparentpolitical maneuver, removed him in favor of Bayani Bernardo. On the other hand, Bernardo never assumed office or took his oath. It cannotbe said,then, that he had accepted his appointment. Such an appointment being ineffective, we hold that the petitioner's appointment prevails. Acceptance is indispensableto complete an appointment. The factthat Bernardo's appointment was confirmed by the Civil ServiceCommission does not complete itsinceconfirmation or attestation by the Commission,although an essential partof the appointingprocess, 3 serves merely to assurethe eligibility of the appointee. 4
- 23. Furthermore, Bernardo nevercontested the petitioner's rightto office. He did,of course, intervene in themandamus suit,but it was a belated effort to asserthis alleged rights.Itis not indicativeof an interested party. It was too littleand too late. Bernardo's argument that he had thought it"prudent" 5 to awaita clarification on the double appointments comes as a lame excuse. He should have challenged the petitioner's subsequent appointment, rather than allowevents to take their course.The Court believes that he is guilty of laches. On the other hand, we cannotsay the same thing as far as the petitioner is concerned. The records show that he was appointed on November 7, 1967,and the followingday,November 8, 1967, he took his oath of office and discharged the duties appurtenant thereto until January 13,1968,when the succeedingmayor, the herein respondent Purificacion Reyes,recalled his appointmentand appointed another. Thereupon, the petitioner went to the Civil ServiceCommission to ask for reinstatement. Finally,hebrought suitfor mandamus.These acts amounted to acceptanceand gave riseto a vested rightto the office in his favor. 6 This caseshould be distinguished from Cristobal v. Melchor, 7 where we held that a party is not precluded by laches frompursuingreinstatement (notwithstandingthe lapseof the one-year period within which to sue on quo warranto.) In that case,we were impressed by the efforts of the dismissed employee to seek reinstatement upon assurances fromhis superiorsthatone would be forthcoming. Moreover, we said that Ingles v. Mutuc, 8 in which we ordered reinstatement, was the lawof the caseamong the parties,although the dismissed employee was not a party thereto. In the caseat bar,Bayani Bernardo never undertook steps that would have convinced us that he was interested in,or had accepted, the appointment. Let the Court say that itwould have been differently minded had he done so. 9 Under the circumstances,there is no necessity in delvingon the questions raised atthe outset. Our findings herein render them moot, and academic. WHEREFORE, the respondent Mayor, or her successor in office,as well as the respondent, the Municipality of Malolos,Bulacan,areORDERED to REINSTATE the petitioner to officeof Chief of Police,Malolos, Bulacan,or its equivalent,or to any position equivalentin rank and pay, subjectto the requirements of age and fitness,and to PAY himback salaries equivalentto five (5) years without qualification or deduction. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur. Footnotes 1 Rollo,34-38. 2 Id., 38-39. 3 Mitra v. Subido, No. L-21691, September 15, 1967, 21 SCRA 127. 4 Villanueva v.Balallo,No.L-17745. October 31, 1963,9 SCRA 407. 5 Brief for Respondent-Appellant, 8. 6 Mitra v. Subido, supra. 7 No. L-43203, July 29,1977,78 SCRA 175. 8 No. L-20390. November 29, 1968,26 SCRA 171. 9 In Lacson vs. Romero, 84 Phil.740 (1949) as well as Santos vs.Mallare,87 Phil. 289 (1950), the Court decreed reinstatement following timely appeals by the dismissed employees. We held therein that the succeedingappointments issued, without the dismissed workers havingvoluntarily vacated their posts,amounted to their removal in violation of their securetenure. G.R. No. L-21691 September 15, 1967 RAMON V. MITRA, petitioner-appellee, vs. ABELARDO SUBIDO, in his capacity as Acting Commissioner of Civil Service, ET AL., respondents- appellants. Garcia, Perez and Sikat for petitioner-appellee. Office of the Solicitor General for respondents-appellants. ANGELES, J.: This is an appeal from the decision of the Court of Firstinstanceof Manila,dated July 26, 1963, in Civil CaseNo. 53006,entitled Ramon V. Mitra,petitioner, versus Abelardo Subido,et al., respondents, declaringnull and void the order of the Acting Commissioner of Civil Serviceterminating the services of Ramon V. Mitra as Senior Technical Assistantin the Officeof the Mayor, City of
- 24. Manila,and orderingthe respondentCity Auditor to authorize the other respondent City Treasurer to pay the salary of the petitioner beginningJanuary 16, 1963,and duringhis tenure of office as Senior Technical Assistantin the Officeof the City Mayor, Antonio J. Villegas. The record of the proceeding had in this casein the court a quo shows the antecedent facts that gave riseto the controversy,as follows: Effective July 1, 1962,Mayor Antonio J. Villegas,of the City of Manila,appointed the petitioner as Senior Technology Assistantin his office,with compensation at the rate of P8,400 per annum. This appointment was forwarded to the Civil ServiceCommission for approval,and after processingthe same, was released with the required approval as follows: APPROVED: subjectto the usual physical and medical examination. Subject to the availability of funds As an exceptional caseunder Sec. 256 of the Revised AdministrativeCode. (x) A. del Rosario Commissioner of Civil Service By: (SGD) EPI REY PANGRAMUYEN Chief, Personnel Transaction Division (x) Provided the provisionsof Par.3,Sec. 23 of Republic Act Act 2260 have been observed. The appointee Ramon V. Mitra qualified for and assumed the position of Senior Technical Assistantin the Officeof the Mayor of Manila on said date,July 1, 1962.Since then, he discharged the duties of the position and was paid the correspondingsalary for his services,until January 15,1963. On January 11, 1963,the Acting Commissioner of Civil Service,Abelardo Subido,wrote to the City Mayor informinghim that the appointment extended to the petitioner was in violation of the certification requirement prescribed by the Civil ServiceLaw and was incomplete, because the approval thereof by Epi Rey Pangramuyen, Chief, Personnel Transactions Division,was "ultra vires," the latter havingacted beyond the scopeof his delegated authority.In the same communication,the actingCommissioner of Civil Serviceordered the termination of the services of Ramon V. Mitra, upon receipt of said letter by the City Mayor, who was "requested to notify accordingly theemployee affected and to advise"the Civil ServiceCommission of the date of said notice. On January 14, 1963,the said letter-order of the Acting Commissioner of Civil Servicewas received by the City Mayor who, on the same date, returned itto the sender with a firstindorsement wherein he explained that the duties of Ramon V. Mitra as Senior Technical Assistantin hisoffice involved the knowledge of the lawprofession and as such,was entitled to the full benefits of Republic Act 1080,as amended. In the concludingparagraph of the indorsement, the City Mayor requested the Commissioner to withdraw his aforesaid letter-order of January 11,1963, terminatingthe services of the petitioner. On January 14, 1963,the Acting Commissioner of Civil Servicesimultaneously sentto the City Treasurer and the City Auditor, both of Manila,and the General Manager of the Government Service InsuranceSystem communications furnishingeach of them with a copy of his order terminatingthe services of the petitioner as Senior Technical Assistantin the Officeof the Mayor, City of Manila.1awphîl.nèt On January 17, 1963,the City Auditor wrote a letter to the City Treasurer requesting that the salary of the petitioner Ramon V. Mitra be suspended beginningwith the period from January 16 to 31, 1963.The City Treasurer forwarded this communication with his firstindorsementto the City Mayor informingthe latter that the salary of Ramon V. Mitra would be suspended correspondingto the period from January 16 to 31, 1963.The same communication was returned on January 25, 1963 by the City Mayor with his second indorsement to the City Treasurer directinghim to continuepaying the salary of the petitioner unless otherwise expressly ordered by his Office. The foregoing communications of the City Mayor did not in any way afford relief in the predicament that the petitioner found himself in,as the Acting Commissioner of Civil Servicedid not heed the request of the City Mayor to withdraw the letter-order of the former terminating the services of the petitioner; similarly,the City Treasurer did not comply with the directivecontained in the second indorsement of the City Mayor, dated January 25, 1963,directinghim to continuepaying the salary of petitioner; and accordingly,Ramon V. Mitra did not receive his salary for the period from January 16 to 31, 1963.Consequently, on February 5, 1963, Ramon V. Mitra filed with the Court of FirstInstanceof Manila,this casewhich is a petition for mandamus with preliminary mandatory injunction againstAbelardo Subido,in his capacity as ActingCommisisoner of Civil Service;Manuel Cudiamat,in his capacity as City Treasurer of Manila;and Jose Erestain,in his capacity as City Auditor. Pending trial of the caseon the merits, petitioner prayed for the issuanceof a writof preliminary mandatory injunction to restrain the Acting Commisisoner of Civil Servicefromenforcing his order of January 11, 1963,terminating his services as Senior Technical Assistantin the Officeof the Mayor, and to order the City Auditor and City Treasurer to authorizeand pay,respectively, his salary correspondingto the period from January 16 to 31, 1963, and those which may thereafter become due and payable.On the basis of the evidence adduced at the hearingthereof, however, the lower court found no extreme necessity justifyingthe issuanceof the writ prayed for; and in its order dated March 9, 1963,denied the prayer for the issuanceof the writ of preliminary mandatory injunction.
- 25. Finally,after due trialon the merits in the main cause,the court a quo on July 26, 1963, rendered the decision appealed from, holdingthat the appointment of petitioner Ramon V. Mitra as Senior Technical Assistantin the Officeof the Mayor atP8,400.00 per annum effective July 1, 1962, bears the valid approval of the Civil ServiceCommission and is complete; that the order of the Commissioner of Civil Servicedated March 11, 1960 did not limitthe authority of the Chief, Personnel Transactions Division of said Officeto approve appointments; that his beinga member of the bar,in relation to the position of Senior Technical Assistantin the Officeof the Mayor is equivalentto "first grade" eligibility under Republic Act 1080,as amended by Republic Act 1844,because the position involves professional knowledge of the law; that the certification requirement of the lawis not necessary in the appointment; that the principleof exhaustion of adsition involves professional knowledge of the law;that the Acting Commissioner of Civil Servicehas no authority to order the cancellation of petitioner's appointment; and that the order of the Acting Commissioner terminating the services of the petitioner dated January 11, 1963,was null and void.Conformably thereto, the Court rendered the decision appealed fromwhich, as aforestated in the opening paragraph of this opinion,declared null and void the order of the Acting Commissioner of Civil Serviceterminatingthe services of Ramon V. Mitra as Senior Technical Assistantin the Officeof the Mayor of Manila,and ordered the respondent City Auditor of said city to authorizethe City Treasurer to pay the salary of the petition of the petitioner beginning January 16,1963, and duringhis tenure of officein his position as Senior Technical Assistant. Respondent Acting Commissioner of Civil Serviceand City Auditor of Manila havecome to Us on appeal,specifically assigningas errors theabove-enumerated holdings of the lower court. Appellants contend that the appellee, Ramon V. Mitra,does not possess the necessary eligibility required by the position to which he was appointed. It is alleged that his beinga member of the bar, considered in relation to his position as Senior Technical Assistantin the Office of the Mayor, City of Manila,which does not involvethe knowledge edge of the lawprofession,is equivalentto "second grade" civil serviceeligibility under Republic Act No. 1080,as amended by Republic Act No. 1944,and is,therefore, not appropriatefor the position aforementioned which involves a compensation of P8,400.00 per annum and requires a "firstgrade" civil serviceeligibility. We shall examinethe provision of the lawinvoked in relation to the duties of the appellee under the position in question.Section 1 of Republic Act 1080,as amended by Republic Act 1844 provides among others, as follows: Sec. 1. — The bar examinations and the examinations given by the various boardsof examiners of the Government are declared as civil serviceexaminations,and shall,for purposes of appointment to the positions in the classified servicethe duties of which involve the knowledge of the respective professions,exceptpositions requiringhighly specialized knowledge not covered by the ordinary board examinations,beconsidered as equivalentto firstgraderegular examination given by the Bureau of Civil Serviceif the profession requires at leastfour years of study in college, and as equivalentto the second grade regular examination if the profession requires less than four years of college study: Provided, however, That such bar or board examination shall beequivalentto the next lower grade of civil serviceexamination when the person is to be employed in a position other than one requiringhis professional knowledge; . . . . On the other hand, as Senior Technical Assistantin the Officeof the Mayor, City of Manila, petitioner was assigned to perform the followingduties: 1. To study and make the necessary recommendation on matters involvingthelegal, technical and administrativeaspects of the city government administration,for appropriate consideration by the undersigned; 2. To undertake research,legal or otherwise, to determine the legality and/or feasibility of the execution of projects of the city which are calculated to insurethe promotion of the best interest and welfare of the city residents,and to make the necessary report thereon for consideration; 3. To take action on official matters wherein his qualifications,knowledge and experience are required and may be utilized to fullestadvantage;and 4. To perform such other assignments as may be given to him from time to ti me. It is argued by the appellants thatthe above-enumerated duties do not involveknowledge of the legal profession as contemplated in the law, aforecited. It is suggested that a distinction should be made between "professional knowledge" and "legal knowledge;" and that whileRepublic Act 1080,as amended, requires professional knowledgeof the law,the position in question,on the other hand, likeany other position in the government service, callsonly for some legal knowledge. The implication is,thatone need not be a lawyer to undertake legal research to determine the legality of city projects,and to study and make necessary recommendation on matters involvingthe legal aspects of the city government administration for consideration of the Mayor of the City of Manila. We find these contention and suggestion devoid of any reasonablebasis.The duties devolving upon the position of Senior Technical Assistantas abovedescribed involvethe capacity notonly of findingwhat and where the lawapplicableto a given situation is,butalso of makinglegal research to know the principles evolved by the courts in construingthat lawas applied to the given situation. Only lawyers,by reason of their academic preparation and trainingin law,aretechnically equipped with knowledge to handlesuch duties. When the lawor the duties of the position to be filled speaks of legal work, it means proficiency in lawis required,which only lawyers arepresumed to possess. Likewise, in passingupon legal matters involvingthe corporate and governmental affairs of the City of Manila,itis indispensablethatthe incumbent must be a lawyer, otherwise, he would not be in a position to determine the legality of a courseof action which the office of the Mayor may desireto take. Neither is the observation of herein appellants,thatthe City Fiscal of Manila as legal adviser of the city, is the proper person to pass upon the legal aspects of city administration,entirely correct, for such contention strikes not only at the very prerogative of the power that created the position in
- 26. question, but alsobecauseitwould deny the Mayor of Manila a chanceto ascertain for himself in the firstinstance,through his assistants,thelegal aspects of matters or problems brought before him. For these reasons,appellee's admission to the bar, in relation to the position of Senior Technical Assistantin the Officeof the Mayor,should be considered as equivalentto firstgradeeligibility under the provisionsof Republic Act 1080. It is next argued by the appellants thatthe appointment of Ramon V. Mitra as Senior Technical Assistantin the Officeof the Mayor of Manila is in violation of the "certification requirement" of the Civil ServiceLaw, relyingupon the provisionsof Section 23, Republic Act No. 2260: . . . if the vacancy is notfilled by promotion as provided herein, then the same shall be filled by transfer of present employees in the government service, by reinstatement, by reemployment of persons separated through reduction in force, or by certification from appropriateregisters of eligibles in accordancewith rules promulgated in pursuanceof this Act. It is apparentfrom the foregoing provision of the Civil ServiceLaw that prior certification of eligibles isrequired only if a position is notfilled by promotion, by transfer of persons already in the government service, and by reinstatement or reemployment of persons separated from the service through reduction in force. In the caseat bar,it was shown duringthe trial thatthe appointee was formerly employed in the Department of Foreign Affairs and the Central Bank of the Philippines. Obviously,therefore, the appointment was a reinstatement, and there was no necessity of obtaining prior certification of eligibles fromthe Civil ServiceCommission. Appellants further maintain that the appelleein this case,had not exhausted administrative remedies, for appeal from the order of the Commissioner of Civil Serviceto the President was yet available,and itwas error on the part of the Court of FirstInstanceof Manila to entertain the premature action instituted againstthem. We find no merit in this argument. It has been repeatedly held that the principlerequiringthe previous exhaustion of administrativeremedies is not applicable where the question in dispute is purely a legal one (Tapales vs.The President & Board of Regents of the U.P., L-17523, March 30,1963), where the controverted actis patently illegal or was performed without jurisdiction or in excess of jurisdiction (Mangubatvs.Osmeña, L-12837, April 30,1959), where the respondent is a department secretary whose acts as an alter ego of the President bear the implied or assumed approval of the latter (MarinduqueIron Mines Agents, Inc. vs.Secretary of Public Works,G.R. No. L-15982,May 31, 1963), or where there are circumstances indicatingtheurgency of judicial intervention (Alzate vs. Aldaba,L-14407, February 29, 1960; Demaisip vs.Court of Appeals,L- 13000,September 29, 1959).Similarly,when, as in this case,in terminating the services of the appellee, the Commissioner of Civil Serviceacted summarily withoutany semblanceof compliance,or even an attempt to comply with the elementary rules of due process,when the order is immediately executed and petitioner was immediately removed from office, then appeal was not a plain,speedy and adequate remedy in the ordinary courseof law(Fernandez, et al.vs. Cuneta, et al.,G.R. No. L- 14392,May 30, 1960),and the employee adversely affected may forthwith seek the protection of the courts.Moreover, appellantCommissioner of Civil Servicemaintainsthatin terminatingthe services of the appellee, he was not actingin the exercise of his power to imposedisciplinary measures to erringsubordinateofficers and employees which is subjectto review by the Civil ServiceBoard of Appeals and the President, but in pursuanceof his power to approveor disapproveappointments,in the exerciseof which latter function, his jurisdiction isexclusive(Sec.16 [h], Republic Act 2260), which all the more renders the claimof non-exhaustion of administrativeremedies in this case untenable (Billy Millares vs.Abelardo Subido,et al.,L-23281, August 10, 1967). Regarding the holdingof the lower courtthat the Commissioner of Civil Servicehad no power to cancel the appointment of the appellee,the appellants arguethat said Commissioner had power to do so because the appointment in question was null and void from the beginning,and that in terminating the services of the appellee, he was merely enforcing the provisionsof the Civil Service Law which should not be construed as a removal of the appointee from office.In justifyinghis act, relianceis madeby the Commissioner of Civil Serviceupon Section 16 of Republic Act No. 2260, otherwise known as the Civil ServiceAct of 1959,and Section 693 of the Revised AdministrativeCode, to wit: Sec. 16. Powers and duties of the Commissioner of Civil Service. — It shall beamong the powers and duties of the Commissioner of Civil Service: (f) To make investigations and special reports upon all matters relatingto the enforcement of the Civil ServiceLawand rules;to inspectand auditthe agencies' personnel work programs to determine compliancewith the Civil ServiceLaw, rules,standards and other requirements; and to take corrective measures when unsatisfactory situations are found; (Republic Act No. 2260) [Emphasis Ours] Sec. 693. Opinion of the Commissioner of Civil Service on Controverted Questions Related to the Service. — A disbursingofficer,the head of any department, bureau, or office, or the Auditor General, may apply for, and the Commissioner of Civil Serviceshall render,a decision upon any question as to whether a position is in the classified or in the unclassified civil service,or whether the appointment of any person to a classified position has been made in accordancewith law,which decision,when rendered, shall befinal unless reversed by the President of the Philippines on appeal.(Revised AdministrativeCode.) There is no sense in denying that the Commissioner of Civil Servicepossesses amplepowers to review appointments made to positions in thecivil service,and to take correctivemeasures when unsatisfactory situations arefound to existunder the above-quoted provisionsof the law.It is also laudablethatthe Commissioner of Civil Servicesees to itthat the provisionsof the Civil ServiceLaw are properly enforced. However, the power to take corrective measures should be exercised with caution. It may be stated as a general rulethat an appointment once made is irrevocableand not subject to reconsideration.This viewrepresents the great weight of authority (note found at page 135 American Law Reports, supported by innumerabledecisions).The ruleis qualified,however, where
- 27. the assent,confirmation orapproval of some other officer or body is needed before the appointment may issueand be deemed complete. Necessarily,this calls for a determination in any given situation whether or not all the acts necessary to make an appointment complete have been performed. Where the power of appointment is absolute,and the appointee has been determined upon, no further consent or approval is necessary,and the formal evidence of the appointment, the commission,may issueatonce. Where, however, the assentor confirmation of some other officer or body is required,the commission can issueor the appointment be complete only when such assentor confirmation is obtained.(Mechem, Law of Public Offices and Officers,Sec.112, p. 46) Under our Civil ServiceLawand the rules promulgated thereunder, an appointment to a position in the civil servicemustbe submitted to the Commissioner of Civil Servicefor approval,i.e., for determination whether the proposed appointee is qualified to hold the position,and whether or not the pertinent rules had been followed in making the appointment. We have said in this connection that the appointment made by an officer duly empowered to make it, is not final and complete until after the Commissioner of Civil Servicehas certified thatsuch appointment may be made (Gorospe vs.Secretary of Public Works,L-11090,January 31,1959). The acts of the head of Department or Officemaking the appointment and the Commissioner of Civil Serviceactingtogether, though not concurrently, but consecutively,are necessary to make an appointment complete. And there should be no question that for an appointee in the clasiffied position in thecivil serviceto be entitled to the protection of the lawagainstunjustremoval,his appointment must receive the approval of the Commissioner of Civil Service(Favis vs.Rupisan,etal., L-22823,May 19, 1966). Applyingthe rules above-explained,We hold that the appointment of the appellee had become complete when the appellantCommissioner of Civil Serviceissued his order terminatingthe services of the former. The appointment in question was extended to the appelleeon July 1, 1962,by virtue of which the appointee assumed the duties of his position.Under the same appointment as approved by the Chief, Personnel TransactionsDivision in thename of the Commissioner of Civil Service,the City Auditor and City Treasurer allowed and paid,respectively,the salary of the appelleefor the period from July 1, 1962 to January 15, 1963, a period of six and a half months. In the caseof appointments made by local officials and attested to by Provincial Treasurersand Ci ty Treasurers under Section 20 of the Civil ServiceLaw, the appointments are deemed to have been properly made if within a period of one hundred eighty days the Commissioner of Civil Servicefailsto make any correction or revision thereof. The same section of the lawordains thatthe Commissioner should make a review of actions taken in the dischargeof delegated authority thereunder, which includethose performed by chiefs of divisions and primary unitsin his office,to insurecompliancewith standards and regulations.After the lapseof the period therein allowed,corrections of mistakes may no longer be had, considering that after the lapseof that time the probationary period of an employee under his appointment also ends, and his appointment automatically becomes permanent. We find no plausiblereason why the presumption of regularity which attaches to appointments attested to by Provincial and City Treasurers after the lapseof six months should not be applied to appointments submitted directly to the Civil ServiceCommissioner and approved in his name by a Chief of Division in his office.Even on the premise that the appointment of the appelleedid suffer from an infirmity occasioned by the mistake of the division chief concerned who approved the appointment, the same should now be deemed complete under the circumstances and reasons above-enumerated. There should be some point of time when an appointment made and approved should not be disturbed by reason of some violation of certain officerules that has been due to mere inadvertence. Unless the appointment is an absolutenullity,or in the absenceof fraud on the partof the appointee, the irregularity mustbe deemed cured by the probational and absoluteappointment of the appointee and should be considered conclusive. A removal from officetakes placeafter title to the office has become vested in the appointee, whereas revocation of an appointment is had,if itis to be successful,before the appointment is complete (42 Am. Jur. 959). The moment the appointee assumes a position in thecivil serviceunder a completed appointment, he acquires a legal,notmerely equitableright, which is protected not only by statute, but also by the Constitution, and it cannotbe taken away from him, either by revocation of the appointment or by removal, except for cause,and with previous notice and hearing, consistent with Section 4 of ArticleXII of our fundamental law, and with the constitutional requirement of due process.And when, as in this case,the appointee has been regularly performingthe duties of his office and been paid the correspondingsalary for more than six months already under a known appointment that was never questioned by either the City Treasurer or the City Auditor of Manila before grantingthe salary of the appellee, the act of the Acting Commissioner of Civil Servicein summarily terminatingthe services of the appointee may not be said to be a reconsideration of the appointment, but is in facta removal from office. Like a judgment that is not void upon its face, the appointment in question is not "the serpent that may be attacked or slain atsight."The power to remove from office cannotlightly be inferred from the duty of the Commissioner of Civil Serviceto make investigations and takecorrectivemeasures when unsatisfactory situationsarefound to exist. Under the circumstances of this case,that duty should be exercised, if it is to be exerciseat all,with the end in view of ratifyingthe appointment in question should he beli eve that the act of his subordinatein approvingthe appointment is not sufficient,consideringthatthe appellee has been found qualified for the position to which he was appointed. In the same token, We find it unnecessary to pass upon the authority of the Chief of Personnel TransactionsDivision of the Civil Service Commission to approve the disputed appointmentof the appellee. WHEREFORE, and consideringall theforegoing, the instantappeal should be,as hereby it is, dismissed,and the decision appealed fromaffirmed in toto. No pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar Sanchez, Castro and Fernando, JJ., concur. G.R. No. 86439 April 13, 1989 MARY CONCEPCION BAUTISTA, petitioner, vs.
- 28. SENATOR JOVITO R.SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents. Mary Concepcion Bautista for and in her own behalf. Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin PADILLA, J.: The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of which appointments by the President, under the 1987 Constitution,are to be made with and without the review of the Commission on Appointments. The Mison casewas the firstmajor caseunder the 1987 Constitution and in construingSec. 16, Art. VII of the 1987 Constitution which provides: The President shall nominateand,with the consent of the Commission on Appointments, appointthe 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 whoseappointments are vested in him in this Constitution.He shall also appointall other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by lawto appoint.The Congress may, by law,vest the appointment of other officers lower in rank in the President alone, in the courts,or in the heads of the departments, agencies,commissions or boards. The President shall havethe power to make appointments duringthe recess of the Congress, whether voluntary or compulsory,but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. this Court, drawingextensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and 1973 Constitutions,held that only those appointments expressly mentioned in the firstsentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the executive department, ambassadors,other public mini sters and consuls,or officers of the armed forces from the rank of colonel or naval captain,and other officers whose appointments are vested in himin this Constitution." All other appointments by the President areto be made without the participation of the Commission on Appointments. Accordingly, in the Mison case,the appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid and in accordancewith the Constitution. The Mison casedoctrinedid not foreclosecontrary opinions.So with the very provisions of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution.But the Constitution,as construed by this Court in appropriatecases,is the supreme lawof the land.And it cannotbe over-stressed that the strength of the Constitution,with all its imperfections,lies in the respect and obedience accorded to itby the people, especially theofficials of government, who are the subjects of its commands. Barely a year after Mison, the Court is again confronted with a similarquestion,this time, whether or not the appointment by the Presidentof the Chairman of the Commission on Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the Court will resolvethe issueirrespectiveof the parties involved in the litigation,mindful thatwhat really matters are the principles thatwill guidethis Administration and others in the years to come. Sincethe position of Chairman of the Commission on Human Rights is not among the positions mentioned in the firstsentence of Sec. 16, Art. VII of the 1987 Constitution,appointments to which are to be made with the confirmation of the Commission on Appointments, itfollows 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,unlikethe Chairmen and Members of the Civil ServiceCommission,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. 2 The President appoints the Chairman and Members of the Commission on Human Rights pursuantto 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 lawto appoint." And Section 2(c),Executive Order No. 163, 5 May 1987, authorizes the President to appointthe Chairman and Members of the Commission on Human Rights. Itprovides: (c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the Presidentfor a term of seven years without reappointment. Appointment to any vacancy shall beonly for the unexpired term of the predecessor. The above conclusionsappear to be plainly evidentand, therefore, irresistible.However, the presence in this caseof certain elements — absentin the Mison case— makes necessary a closer scrutiny.The facts aretherefore essential. On 27 August 1987, the Presidentof the Philippines designated herein petitioner Mary Concepcion Bautista as"Acting Chairman,Commission on Human Rights." The letter of designation reads:
- 29. 27 August 1987 Ma d a m: You arehereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and JusticeJ. B. L. Reyes. V e r y t r u l y y o u r s , C O R A Z O N C . A Q U I N O HON. MARY CONCEPCION BAUTISTA 3 Realizingperhaps the need for a permanent chairman and members of the Commission on Human Rights, befitting an independent office,as mandated by the Constitution, 4 the Presidentof the Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman of the Commission.The appointment letter is as follows: The Honorable The Chairman Commission on Human Rights Pasig,Metro Manila M a d a m: Pursuantto the provisions of existinglaws,the followingarehereby appointed to the positions indicated oppositetheir respective names in the Commission on Human Rights: MARY CONCEPCION BAUTISTA — Chairman ABELARDO L. APORTADERA, JR — Member SAMUEL SORIANO — Member HESIQUIO R. MALLILLIN — Member NARCISO C. MONTEIRO — Member
- 30. By virtue hereof,they may qualify and enter upon the performance of the duties of the office furnishingthis Officeand the Civil ServiceCommission with copies of their oath of office. V e r y t r u l y y o u r s , C O R A Z O N C . A Q U I N O 5 It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights,requiringher to furnish the officeof the President and the Civil Service Commission with copies of her oath of office. On 22 December 1988, before the Chief Justiceof this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of office is as follows: OATH OF OFFICE I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati,Metro Manila havingbeen appointed to the position of CHAIRMAN of the Commission on Human Rights,do solemnly swear that I will dischargeto the best of my ability all theduties and responsibilities of the office to which I have been appointed; uphold the Constitution of the Republic of the Philippines,and obey all the laws of the land without mental reservation or purpose of evasion. SO HELP ME GOD. M A R Y C O N C E P C I O N B A U T I S
- 31. T A SUBSCRIBED AND SWORNTO before me this 22nd day of December in the year of Our Lord, 1988 in Manila. M A R C E L O B . F E R N A N C h i e f J u s t i c e S u p r e m e C o u r t o f t h e P h i l i p p i n e s 6 Immediately, after takingher oath of office as Chairman of the Commission on Human Rights, petitioner Bautista discharged the functions and duties of the Officeof Chairman of the Commission on Human Rights which,as previously stated,she had originally held merely in an actingcapacity beginning27 August 1987. On 9 January 1989,petitioner Bautista received a letter from the Secretary of the Commission on Appointments requesting her to submit to the Commission certain information and documents as required by its rules in connection with the confirmation of her appointment as Chairman of the Commission on Human Rights. 7 On 10 January 1989,the Commission on Appointments' Secretary again wrote petitioner Bautista requestingher presence ata meeting of the Commission on Appointments Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January
- 32. 1989 at 9A.M. atthe Conference Room, 8th Floor,Kanlaon Tower I, Roxas Boulevard,Pasay City that would deliberateon her appointment as Chairman of the Commission on Human Rights. 8 On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating,for the reasons therein given, why she considered the Commission on Appointments as havingno jurisdiction to review her appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the Commission on Appointments' Chairman reads: J a n u a r y 1 3 , 1 9 8 9 SENATE PRESIDENT JOVITO R. SALONGA Chairman Commission on Appointments Senate, Manila S i r: We acknowledge receipt of the communication from the Commission on Appointments requesting our appearanceon January 19,1989 for deliberation on our appointments. We respectfully submitthat the appointments of the Commission commissionersof the Human Rights Commission arenot subjectto confirmation by the Commission on Appointments. The Constitution,in ArticleVII Section 16 which expressly vested on the President the appointingpower, has expressly mentioned the government officialswhose appointments are subjectto the confirmation of the Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those. Where the confirmation of the Commission on Appointments is required,as in the caseof the Constitutional Commissionssuch asthe Commission on Audit, Civil Service Commission and the Commission on Elections,itwas expressly provided that the nominations will besubjectto confirmation of Commission on Appointments. The exclusion again of the Commission on Human Rights, a constitutional office,fromthis enumeration is a clear denial of authority to the Commission on Appointments to review our appointments to the Commission on Human Rights. Furthermore, the Constitution specifically provides thatthis Commission is an independent office which: a. must investigateall forms of human rights violationsinvolving civil and political rights; b. shall monitor the government's compliancein all our treaty obligations on human rights.We submit that, the monitoringof all agencies of government, includes even Congress itself,in the performance of its functions which may affect human rights; c. may call on all agencies of government for the implementation of its mandate. The powers of the Commission on Appointments is in facta derogation of the Chief Executive's appointingpower and therefore the grantof that authority to review a valid exerciseof the executive power can never be presumed. It must be expressly granted. The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the Presidentof Commissioners of the Commission on Human Rights. In view of the foregoing considerations,as Chairman of an independent constitutional office.I cannotsubmitmyself to the Commission on Appointments for the purposeof confirmingor rejectingmy appointment. V e
- 33. r y t r u l y y o u r s , M A R Y C O N C E P C I O N B A U T I S T A C h a In respondent Commission'scomment (in this case),dated 3 February 1989, there is attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig,Jr.making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights" 10 and informingSecretary Macaraigthat,as previously conveyed to him in a letter of 25 January 1989,the Commission on Appointments disapproved petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submitto the jurisdiction of the Commission on Appointments. The letter reads: HON. CATALINO MACARAIG, JR. Executive Secretary Malacanang,Manila S i r: This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights.
- 34. As we conveyedto you in our letter of 25 January 1989,the Commission on Appointments, assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in view of her refusal to submitto the jurisdiction of the Commission on Appointments. This is to informyou that the Commission on Appointments, likewiseassembled in plenary (session) earlier today,denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights. V e r y t r u l y y o u r s , R A O U L V . V I C T O On the same date (1 February 1989),the Commission on Appointments' Secretary informed petitioner Bautista that the motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows: ATTY. MARY CONCEPCION BAUTISTA Commission on Human Rights
- 35. Integrated Bar ofthe Philippines Bldg. Pasig,Metro Manila Dear Atty. Bautista: Pursuantto Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on Appointments, assembled in plenary (session) earlier today,of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission on Human Rights is respectfully conveyed. Thank you for your attention. V e r y t r u l y y o u r s , R A O U L V . V I C In Annex 3 of respondent Commission's same comment, dated 3 February 1989,is a news item appearingin the 3 February 1989 issueof the "Manila Standard"reportingthat the Presidenthad designated PCHR Commissioner Hesiquio R. Mallillin as"ActingChairman of the Commission"pending the resolution of Bautista's casewhich had been elevated to the Supreme Court. The news item is here quoted in full,thus — Aquino names replacement for MaryCon President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by the Congressional commission on appointments. The President designated PCHR commissioner Hesiquio R.Mallillin as acting chairman of the Commission pendingthe resolution of Bautista's casewhich had been elevated to the Supreme Court. The President's action followed after Congressional Commission on Appointments Chairman,Senate President Jovito Salonga declared Bautista can no longer hold on to her position after her appointment was not confirmed for the second time. For all practical purposes,Salonga said Bautista can beaccused of usurpation of authority if she insiststo stay on her office.
- 36. In effect, thePresident had asked Bautista to vacateher office and give way to Mallillin (Mari Villa) 13 On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad interimappointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court the present petition for certiorari with a prayer for the immediate issuanceof a restrainingorder,to declare"as unlawful and unconstitutional and withoutany legal force and effect any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman of the Commission on Human Rights,on the ground that they have no lawful and constitutional authority to confirmand to review her appointment." 14 The prayer for temporary restrainingorder was "to enjoin the respondent Commission on Appointments not to proceed further with their deliberation and/or proceedings on the appointment of the petitioner ... nor to enforce, implement or acton any order, resolution,etc. issued in the courseof their deliberations." 15 Respondents were required to filecomment within ten (10) days. 16 On 7 February 1989,petitioner filed an amended petition, with urgent motion for restrainingorder,impleadingCommissioner Hesiquio R. Mallillin thedesignated actingchairman as party respondent and prayingfor the nullification of his appointment. The succeedingday, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin fromcontinuingto exercisethe functions of chairman and to refrain from demanding courtesy resignations fromofficers or separatingor dismissingemployees of the Commission. Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issuea temporary restrainingorder directingrespondent Mallillin to ceaseand desist from effecting the dismissal,courtesy resignation,i removal and reorganization and other similar personnel actions. 17 Respondents were likewiserequired to comment on said amended petition with allowancefor petitioner to filea reply within two (2) days from receipt of a copy thereof. Respondents Senator Salonga,the Commission on Appointments the Committee on J & BC and Human Rights filed a comment to the amended petition on 21 February 1989.18 Petitioner filed her reply. 19 On 24 February 1989,respondent Mallillin filed a separatecomment. 20 The Court required petitioner to reply to respondent Mallillin's comment . 21 Petitioner filed her reply. 22 In deference to the Commission on Appointments, an instrumentality of a co-ordinateand co-equal branch of government, the Court did not issuea temporary restrainingorder directed againstit. However, this does not mean that the issues raised by the petition, as met by the respondents' comments, will notbe resolved in this case.The Court will not shirk fromits duty as the final arbiter of constitutional issues,in the same way that it did not in Mison. As disclosed by the records,and as previously adverted to, itis clear thatpetitioner Bautista was extended by Her Excellency,the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting Chairman"of the Commission.Bautista's appointmenton 17 December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted for review and confirmation (or rejection) by the Commission on Appointments. This is in accordancewith Sec. 16,Art. VII of the 1987 Constitution and the doctrinein Mison which is here reiterated. The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which sheha d been appointed, by taking the oath of officeand actually assumingand dischargingthe 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 sameoffice of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments. The Court, with all duerespect to both the Executive and LegislativeDepartments of government, and after careful deliberation,is constrained to hold and rulein the negative. When Her Excellency, the President converted petitioner Bautista's designation as ActingChairman 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 acceptthe appointment. Obviously,sheaccepted the appointment by takingher oath of officebefore the Chief Justiceof the Supreme Court, Hon. Marcelo B. Fernan and assumingimmediately 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 paraphrasethe great jurist,Mr. Chief JusticeMarshall,in the celebrated caseof Marbury vs. Madison. 23 xxx xxx xxx The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. xxx xxx xxx Some point of time must be taken when the power of the executive over an officer, not removable at his will mustcease.That point of time must be when the constitutional power of appointment has been exercised.And this power has been exercised when the lastact,required from the person possessingthepower, has been performed. ....
- 37. xxx xxx xxx Buthavingonce made the appointment, his (the President's) power over the office is terminated in all cases,where by lawthe officer is not removable by him. The rightto the office is then in the person appointed, and he has the absolute, unconditional power of acceptingor rejectingit. xxx xxx xxx THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989 It is respondent Commission's submission thatthe 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, submittingsuch appointment (more accurately,nomination) to the Commission on Appointments for confirmation.And yet, itseems obvious enough, both in logic and in fact, that no new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee, through a valid qualification and assumption of its duties. Respondent Commission vigorously contends that, grantingthat 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 submitsuch 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 areplaced by the Constitution. The Court really finds the above contention difficultof 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 intentis to strikea careful and delicatebalance, in the matter of appointments to public office,between the Presidentand Congress (the latter acting through the Commission on Appointments). To tiltone sideor the other of the scaleis to disruptor alter such balanceof power. In other words, to the extent that the Constitution has blocked off certain appointments for the Presidentto make with the participation of the Commission on Appointments, so also has theConstitution mandated that the President can confer no power of participation in theCommission on Appointments over other appointments exclusively reserved for her by the Constitution.The exerciseof political options thatfinds no supportin the Constitution cannot be sustained. Nor can the Commission on Appointments, by the actual exerciseof its constitutionally delimited power to review presidential appointments,create power to confirmappointments that the Constitution has reserved to the Presidentalone. 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 actof submitting such appointment to the Commission on Appointments and the latter's actof confirmingor rejectingthe same, aredone without or in excess of jurisdiction. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989 Under this heading,we will assume, ex gratia argumenti, that the Executive may voluntarily allowthe Commission on Appointments to exercisethe power of review over an appointment otherwise solely vested by the Constitution in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human Rights with the adviceto her that by virtueof such appointment (not, until confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after takingher oath of office,the presidential act of appointment to the subjectposition which,under the Constitution,is to be made, in the firstplace,without the participation of the Commission on Appointments, was then and there a complete and finished act,which,upon the acceptanceby Bautista,as shown by her taking of the oath of office and actual assumption of the duties of said office, installed her,indubitably and unequivocally,as thelawful Chairman of the Commission on Human Rights for a term of seven (7) years.There was thus no vacancy in the subjectoffice on 14 January 1989 to which an appointment could be validly made.In fact, there is no vacancy in said office to this day. Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was anad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the Presidentto make, i.e., without the participation of the Commission on Appointments. Ad interim appointments, by their very nature under the 1987 Constitution,extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is,without the participation of the Commission on Appointments, can not bead interim appointments. EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL. Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner Bautista,as Chairman of the Commission on Human Rights, can be removed from said officeat anytime, at the pleasureof the President; and that with the disapproval of Bautista's appointment(nomination) by the Commission on Appointments, there was greater
- 38. reason for herremoval by the President and her replacement with respondent Mallillin Thus, accordingto respondent Mallillin thepetition at bar has become moot and academic. We do not agree that the petition has become moot and academic.To insiston such a posture is akin to deludingoneself that day is nightjustbecause the drapes aredrawn and the lights areon. For, asidefrom the substantivequestions of constitutional lawraised by petitioner, the records clearly show that petitioner came to this Court in timely manner and has not shown any indication of abandoningher petition. Relianceis placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows: WHEREAS, the Constitution does not prescribethe term of office of the Chairman and Members of the Commission on Human Rights unlikethose of other Constitutional Commissions; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines,do hereby order: SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows: The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in office shall beat the pleasureof the President. SEC. 2. This Executive Order shall takeeffect immediately. DONE in the City of Manila,this 30th day of June, in the year of Our Lord, nineteen hundred and eighty- seven. ( S g d . ) C O R A Z O By the President:
- 39. (Sgd.) JOKER P.ARROYO Executive Secretary 24 Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was issued by the President, Sec. 2(c) of which provides: Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointments to any vacancy shall beonly for the unexpired term of the predecessor. It is to be noted that, whilethe 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 "atthe pleasureof the President." Tenure in officeshould not be confused with term of office. As Mr. Justice (later,Chief Justice) Concepcion in his concurringopinion in Alba vs.Evangelista, 26 stated: The distinction between "term" and "tenure" is important,for, pursuantto the Constitution,"no officer or employee in the Civil Servicemay be removed or suspended except for cause,as provided by law"(Art. XII,section 4), and this fundamental principlewould be defeated if Congress could legally makethe tenure of some officialsdependent upon the pleasure of the President, by clothingthe latter with blanketauthority to replacea public officer before the expiration of his term. 27 When Executive Order No. 163 was issued,the evident purpose was to comply with the constitutional provision that"the term of office and other qualificationsand disabilities of the Members of the Commission (on Human Rights) shall beprovided 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 reappointment, as provided by Executive Order No. 163, and consistentwith 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) cannotbe later made dependent on the pleasureof the President. Nor can respondent Mallillin find supportin the majority opinion in the Alba case,supra,becausethe power of the President, sustained therein, to replacea previously appointed vice-mayor of Roxas City given the express provision in Sec.8, Rep. Act No. 603 (creatingthe City of Roxas) statingthat the vice-mayor shall serveatthe pleasureof the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself.Besides, unlikein the Alba case,here the Constitution has decreed that the Chairman and Members of the Commission on Human Rights shall havea "term of office." Indeed, the Court finds itextremely difficultto conceptualizehow an officeconceived and created by the Constitution to be independent as the Commission on Human Rights-and vested with the delicate and vital functions of investigatingviolationsof human rights,pinpointingresponsibility 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 pleasureof the President.Executive Order No. 163-A, being antithetical to the constitutional mandateof independence for the Commission on Human Rights has to be declared unconstitutional. The Court is not alonein viewingExecutive Order No. 163-A as containingthe seeds of its constitutional destruction.The proceedings in the 1986 Constitutional Commission clearly pointto its being plainly atwar with the constitutional intentof independence for the Commission.Thus — MR. GARCIA (sponsor).Precisely,oneof the reasons why it is importantfor this body to be constitutionalized is the factthat regardless of who is the President or who holds the executive power, the human rights issueis of such importancethat it should be safeguarded and itshould be independent of political parties or powers that are actually holdingthe reins of government. Our experience duringthe martial lawperiod made us realizehow precious those rights areand, therefore, these must be safeguarded at all times. xxx xxx xxx MR. GARCIA. I would liketo state this fact: Precisely we do not want the term or the power of the Commission on Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain commissioner and that commissioner is subjectto the President, therefore, any human rights violationscommitted under the person's administration will besubjectto presidential pressure.Thatis what we would liketo avoid — to make the protection of human rights go beyond the fortunes of different political parties or administrations in power. 28 xxx xxx xxx MR. SARMIENTO (sponsor).Yes, Madam President. I conferred with the honorable Chief JusticeConcepcion and retired JusticeJ.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from executive influencebecause many of the irregularities on human rights violationsare committed by members of the armed forces and members of the executive branch
- 40. of the government.So as to insulatethis body from political interference, there is a need to constitutionalizeit. 29 xxx xxx xxx MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized,I would refer to a previous inquiry thatthere is still a need for makingthis a constitutional body free or insulated from interference. I conferred with former Chief JusticeConcepcion and the actingchairman of the Presidential Committee on Human Rights, retired JusticeJ.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from executive control or interferences, sincemany of the abuses arecommitted by the members of the military or the armed forces. 30 xxx xxx xxx MR. SARMIENTO. Yes, Congress can create this body, but as I have said,if we leave it to Congress, this commission will bewithin the reach of politiciansand of public officers and that to me is dangerous.We should insulatethis body from political control and political interferencebecause of the nature of its functions to investigateall forms of human rights violations which areprincipally committed by members of the military,by the Armed Forces of the Philippines. 31 xxx xxx xxx MR. GARCIA. The critical factor hereis political control,and normally,when a body is appointed by Presidents who may change, the commission mustremain above these changes in political control.Secondly,the other important factor to consider are the armed forces, the policeforces which have tremendous power at their command and, therefore, we would need a commission composed of men who also are beyond the reach of these forces and the changes in political administration. 32 xxx xxx xxx MR MONSOD. Yes, It is the committee's position that this proposed special body,in order to function effectively, must be invested with an independence that is necessary not only for its credibility butalso for the effectiveness of its work. However, we want to make a distinction in this Constitution.May be what happened was that it was referred to the wrong committee. In the opinion of the committee, this need not be a commission thatis similar to the three constitutional commissions likethe COA, the COMELEC, and the Civil Service.Itneed not be in that article.33 xxx xxx xxx MR. COLAYCO. The Commissioners earlier objection was thatthe Officeof the President is notinvolved in the project. How sure are we that the next President of the Philippines will besomebody we can trust? Remember, even now there is a growing concern aboutsome of the bodies, agencies and commission created by President Aquino. 34 xxx xxx xxx .... Leaving to Congress the creation of the Commission on Human Rights is giving less importanceto a truly fundamental need to set up a body that will effectively enforce the rules designed to uphold human rights. 35 PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE To hold,as the Court holds,that petitioner Bautista is the lawful incumbentof the officeof Chairman of the Commission on Human Rights by virtue of her appointment, as such,by the Presidenton 17 December 1988,and her acceptance thereof, is notto say that she cannotbe removed from office before the expiration of her seven (7) year term. She certainly can be removed but her removal must be for causeand with her right to due process properly safeguarded.In the caseof NASECO vs. NLRC, 36 this Court held that before a rank-and-fileemployee of the NASECO, a government-owned corporation,could be dismissed,shewas entitled to a hearingand due process.How much more, in the caseof the Chairman of a constitutionally mandated INDEPENDENT OFFICE, likethe Commission on Human Rights. If there are charges againstBautista for misfeasanceor malfeasancein office,charges may be filed againsther with the Ombudsman. If he finds a prima facie caseagainsther, the corresponding information or informations can be filed with the Sandiganbayan which may in turn order her suspension fromofficewhile the caseor cases againsther arepending before said court. 37 This is due process in action.This is the way of a government of laws and not of men. A FINAL WORD It is to the creditof the Presidentthat, in deference to the rule of law,after petitioner Bautista had elevated her caseto this Tribunal,Her Excellency merely designated an Acting Chairma n for the Commission on Human Rights (pending decision in this case) instead of appointinganother permanent Chairman.The latter coursewould have added only more legal difficulties to an already difficultsituation. WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is,the duly appointed Chairman of the Commission on Human Rights and the lawful incumbentthereof, entitled
- 41. to all thebenefits,privileges and emoluments of said office.The temporary restrainingorder heretofore issued by the Court againstrespondent Mallillin enjoininghimfrom dismissingor terminating personnel of the Commission on Human Rights is made permanent. SO ORDERED. Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ., concur. Fernan, C.J., took no part, having administered petitioner's oath of office. Sarmiento, J., took no part, respondent Mallillin is my godson. Separate Opinions GUTIERREZ, JR., J.: DissentingOpinion With all due respect for the contrary view of the majority in the Court, I maintain thatit is askingtoo much to expect a constitutional rulingwhich results in absurd or irrational consequences to ever become settled. The President and Congress, the appointees concerned, and the general public may in time accept the Sarmiento III v. Mison rulingbecausethis Courthas the final word on what constitutional provisionsaresupposed to mean but the incongruity will remain stickingoutlikea sore thumb. Serious students of the Constitution will continueto be disturbed until the meaning of the consent power of the Commission on Appointments is straightened out either through a re-examination of this Court's decision or an amendment to the Constitution. Section 16, ArticleVII of the Constitution consists of only three sentences. The officers specified in the firstsentence clearly requireconfirmation by the Commission on Appointments. The officers mentioned in the third sentence justas clearly do not require confirmation.The problem area lies with those in the second sentence. I submit that we should re-examine the three groups of presidential appointees under the three sentences of Section 16. The firstgroup arethe heads of executive departments, ambassadors,other public ministers and consuls,officers of the armed forces from colonel or naval captain,and other officers whose appointments are vested in the President by the Constitution.The firstsentence of Section 16 state they must be confirmed by the Commission on Appointments. The third group are officers lower in rank whose appointments Congress has by lawvested in the President alone. They need no confirmation. The second group of presidential appointees are"all other officers of the Government whose appointments are not otherwise provided for by lawand those whom he may be authorized by lawto appoint." To which group do they belong?-Group I requiringconfirmation or Group 3 where confirmation is notneeded? No matter how often and how longI read the second sentence of Section 16, I simply cannot associatethe officers mentioned therein as formingpart of those referred to in the third sentence. Why am I constrained to hold this view? (1) If the officers in the firstgroup arethe only appointees who need confirmation,there woul d be no need for the second and third sentences of Section 16. They become superfluous.Any one not falling under an express listingwould need no confirmation.I think the Court is wrong in treating two carefully crafted and significantprovisionsof the fundamental lawas superfluities.Except for the most compellingreasons,which do not existhere, no constitutional provision should beconsidered a useless surplusage. (2) As strongly stressed by JusticeIsagani Cruzhere and in our earlier dissent,the majority view results in the absurd consequence where one of several hundred colonels and naval captainsmustbe confirmed but such important officers as the Governor of the Central Bank with broad powers over the nation's economy and future stability or the Chairman of the Commission on Human Rights whose office callsfor no less than a constitutional mandatedo not have to be scrutinized by the Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough scrutiny duringthe confirmation process whilethe Undersecretary of Foreign Affairs who sends him there and who exercises control over his acts can be appointed by the Presidentalone? Why should we interpret Section 16 in such a strangeand irrational manner when no strained construction is needed to give it a logical and moretraditional and understandablemeaning.? (3) The second sentence of Section 16 starts with,"He shall also appoint...." Whenever we see the word "also"in a sentence, we associateitwith preceding sentences, never with the different sentence that follows.On the other hand, the third sentence specifies "other officers lower in rank' who areappointed pursuantto lawby the President "alone." This can only mean that the higher rankingofficers in the second sentence must also be appointed with the concurrenceof the Commission on Appointments. When the Constitution requires Congress to specify who may be appointed by the President alone, we should not add other and higher rankingofficers as also
- 42. appointed by heralone.The strained interpretation by the Court's majority makes the word "alone" meaningless if the officers to whom "alone"is not appended are also included in the third group. (4) The third sentence of Section 16 requires a positiveact of Congress which vests an appointment in the President alonebefore such an appointment is freed from the scrutiny of the Commission on Appointments. By express constitutional mandate,it is Congress which determines who do not need confirmation.Under the majority rulingof the Court, if Congress creates an important office and requires the consent of the Commission before a presidential appointmentto that officeis perfected, such a requirement would be unconstitutional.I believethat the Constitution was never intended to so restrictthe lawmakingpower. The Court has no jurisdiction to limitthe plenary lawmakingpower of the people's elected representatives through an implied and,I must again add,a strained reading of the plain text of Section 16. Any restriction of legislativepower must be categorical,express,and specific-never implied or forced. (5) The Constitution specifies clearly thepresidential 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 arenot confirmed becausethe Judicial and Bar Council screens nominees before their names are forwarded to the President. The Vice-Presidentas a cabinetmember needs no confirmation becausethe Constitution says so.He or she is chosen by the nation's entire electorate and is only a breath away from the Presidency.Those fallingunder the third sentence of Section 16, Article VII do not have to be confirmed because the Constitution gives Congress the authority to free lower rankingofficialswhosepositions arecreated by lawfrom that requirement. I believe that we in the Court have no power to add by implication to the listof presidential appointees whom the Constitution in clear and categorical words declares as notneeding confirmation. (6) As stated in my dissentin Sarmiento III v. Mison, the Commission on Appointments is an important constitutional body which helps givefuller expression to the democratic principles inherent in our presidential formof government. There are those who would render innocuous the Commission's power or perhaps even move for its abolition as a protestagainstwhatthey believe is too much horsetradingor sectarian politics in the exerciseof its functions.Since the Presidentis a genuinely liked and popular leader,personally untouched by scandal,who appears to be motivated only by the sincerestof intentions,these people would want the Commission to routinely rubberstamp those whom she appoints to high office. Unfortunately, we cannot have one readingof Section 16 for popular Presidents and another interpretation for more mediocre disliked,and even abusiveor dictatorial ones.Precisely,Section 16 was intended to check abuseor ill-considered appointments by a President who belongs to the latter class. It is not the judiciary and certainly notthe appointed bureaucracy butCongress which truly represents the people. We should notexpect Congress to act only as the selfless Idealists,the well- meaning technocrats, the philosophers,and the coffee-shop pundits would have itmove. The masses of our people are poor and underprivileged,without the resources or the time to get publicly involved in the intricateworkings of Government, and often ill-informed or functionally illiterate. These masses together with the propertied gentry and the elite classcan express their divergent views only through their Senators and Congressmen. Even the buffoons and retardates deserve to have their interests considered and aired by the people's representatives. In the democracy we have and which we try to improve upon, the Commission on Appointments cannotbe expected to function likea mindless machinewithout any debates or even imperfections. The di scussionsand wranglings, the delays and posturingarepart of the democratic process.They should never be used as arguments to restrictlegislativepower where the Constitution does not expressly providefor such a limitation. The Commission on Human Rights is a very important office. Our country is beset by widespread insurgency,marked inequity in the ownership and enjoyment of wealth and political power,and dangerous conflicts arisingfromIdeological,ethnic and religious differences.The tendency to use force and violent means againstthosewho hold oppositeviews appears irresistibleto the holders of both governmental and rebel firepower. The President is doubly careful in the choiceof the Chairman and Members of the Commission on Human Rights. Fully awareof the rulingin Sarmiento III v. Mison, she wants the appointments to be a jointresponsibility of the Presidency and Congress,through the Commission on Appointments. She wants a more thorough screeningprocess for these sensitivepositions. She wants only the best to survivethe process. Why should we tell both the President and Congress that they are wrong.? Again, I fail to see why the captain of a naval boatordered to firebroadsides againstrebel concentrations should receivegreater scrutiny in his appointmentthan the Chairman of the Human Rights Commission who has infinitely morepower and opportunity to bringthe rebellion to a justand satisfactory end. But even if I were to agree with the Sarmiento III v. Mison ruling,I would still includethe Chairman of the Human Rights Commission as oneof the "other officers whoseappointments are vested in him in this Constitution"under the firstsentence of Section 16, Article VII.Certainly,the chairman cannotbe appointed by Congress or the Supreme Court. Neither should we read Article XIII of the Constitution as classifyingthe chairman amongthe lower rankingofficers who by lawmay be appointed by the head of an executive department, agency, commission,or board.The Constitution crea ted the independent office.The Presidentwas intended to appointits chairman. I, therefore, regretfully reiterate my dissentfrom the Sarmiento III v. Mison rulingand join in the call for a re-examination of its doctrine. CRUZ, J., dissenting:
- 43. This is asgood a time as any to re-examine our rulingin Sarmiento v. Mison,which was adopted by the Court more than a year ago over two dissents.The President of the Philippines hastaken a second look at it, and so too has the Commission on Appointments representing both Houses of the Congress of the Philippines.Itappears thatthey arenot exactly certain now that the decision in that casewas correct after all.I believeit will notbe amiss for us too, in a spiritof humility,to read the Constitution again on the possibility thatwe may have misread itbefore. The ponencia assumes that we were rightthe firsttime and that the Mison caseis settled — there is no need to re-examine it. It therefore approaches the problem at hand from another perspective and would sustain thepetitioner on an additional ground. The theory is that the petitioner's firstappointment on 17 December 1988 was valid even if not confirmed, conformably to Mison,and could not be replaced with the second appointment on 14 January 1989 becausethere was no vacancy to fill.By this reasoning,the opinion would definitely avoid the question squarely presented to the Court, viz., whether or not the Chairman of the Commission on Human Rights is subjectto confirmation as required now by both the Presidentof the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the Mison rulingin the lightof this supervening significantalbeitdecidedly notcontrollingcircumstance. The majority makes its ratiocination sound so simple,but I find I am unableto agree. I think we must address the legal question frontally instead of fallingback on a legal sleight-of hand of now-you-see- it-now-you-don't. As one who never agreed with the bison rulingin the firstplace,I suspectthat the seeming diffidence in applyingitcategorically to the caseatbar is due to a degree of uneasiness over its correctness.I think this is the reason another justification had to be offered to bolster Mison. In my dissentin Alison,I specifically mentioned the Chairman of the Commission on Human Rights as among the importantofficers who would not have to be confirmed if the majority view were to be followed. By contrast,and inexplicably,thecolonel in the armed forces would need confirmation although he is not a constitutional officer with the serious responsibilities of the former. Also not to be confirmed are the Governor of the Central Bank unlikethe relatively minor multisectoral representative of the regional consultativecommission,and the Undersecretary of Foreign Affairs although the consul,who is his subordinate,would need confirmation.When I pointed to these incongruous situations,I was told itwas not our placeto question the wisdom of the Constitution. What I was questioningwas not the wisdomof the Constitution but the wisdom of our interpretation which I said would lead to absurd consequences.But only JusticeGutierrez agreed with me. Now the chickens have come home to roost.The petitioner asks us to unequivocally a pply our own rulingin Alison,butwe are equivocating.The ponencia would sustain the petitioner by a circumlocution,such as itis,as if itdoes not think Mison,will sufficefor its conclusion. As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a clear indication thatthe Presidentof the Philippines no longer agrees with the Mison,ruling,at least insofar as itapplies to the present case. Signifi cantly theCommission on Appointments, which was also awareof Mison, has as clearly rejected it by actingon the appointment. These meaningful developments must give us pause. We may have committed an error in Mison,which is bad enough, and may be persistingin itnow, which is worse. Coming now to the theory of the majority,I regret I am also unableto accept it. Consistentwith my view in Mison,I submitthat what President Aquino extended to the petitioner on 17 December 1988 was an ad interim appointment that although immediately effective upon acceptancewas still subject to confirmation.I cannotagree that when the President said the petitioner could and enter into the performance of her duties, "all thatremained for Bautista to do was to reject or accept the appointment." In fact, on the very day itwas extended, the ad interim appointment was submitted by the President of the Philippines to the Commission on Appointments "for confirmation." The ponencia says that the appointment did not need any confirmation,beingthe soleactof the President under the Mison ruling.That would have settled the question quite conclusively,butthe opinion goes on to argue another justification thatI for one find unnecessary,not to say untenable. I sense here a palpableeffort to bolster Mison because of the apprehension that itis fallingapart. Of course,there was no vacancy when the nomination was made on 14 January 1989.There is no question that the petitioner was still validly holdingtheoffice by virtue of her ad interim appointment thereto on 17 December 1988. The nomination made later was unnecessary becausethe ad interim appointment was still effective.When the Commission on Appointments sent the petitioner the letters dated 9 January 1989 and 10 January 1989 requiringher to submit certain data and inviting her to appear before it, itwas actingnot on the nomination but on the ad interim appointment. What was disapproved was the ad interim appointment, not the nomination. The nomination of 14 January 1989 is notin issuein this case.Itis entirely immaterial.At best, itis important only as an affirmation of the President's acknowledgment that the Chairman of the Commission on Human Rights must be confirmed under ArticleVII, Section 16 of the Constitution. It does not follow,of course,that simply becausethe President of the Philippines has changed her mind, and with the expressed supportof the Commission on Appointments, we should docilely submitand reverse Mison.That is not how democracy works. The Court is independent. I do suggest, however, that the majority could have erred in that caseand that the leastwe can do now is to take a more careful look at the decision.Let us check our bearings to make sure we have not gone astray. That is all I ask I repeat my view that the Chairman of the Commission on Human Rights is subjectto confirmation by the Commission on Appointments, for the reasons stated in my dissentin Mison Accordingly,I vote to DENY the petition. GRIÑO-AQUINO, J.: dissenting:
- 44. I believe thatthe 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 followingprovision of Section 16, ArticleVII of the 1987 Constitution: SEC. 16. The President shall nominateand,with the consent of the Commission on Appointments, appointthe heads of the executive departments, ambassadors, other public ministers and consuls,or officers of the armed forces from the rank of colonel or naval captain,and other officers whose appointments are vested in him in this Constitution.... In my view, the "other officers"whose appointments are vested in the President in the Constitution are theconstitutional officers, meaning those who hold offices created under the Constitution,and whose appointments are not otherwise provided for in the Charter. Those constitutional officersare the chairmen and members of the Constitutional Commissions,namely:the Civil ServiceCommission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII).These constitutional commissions are,without excaption,declared to be "independent," but whilein the caseof the Civil ServiceCommission,the Commission on Elections and the Commission on Audit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shall beappointed 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 clauseis found in Section 17, Article VIII creatingthe Commission on Human Rights. Its absence, however, does not detract from, or diminish,the President's power to appointthe Chairman and Commissioners of the said Commission.Thesource of that power is the firstsentence of Section 16, ArticleVII of the Constitution for: (1) the Commission on Human Rights is an officecreated 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 bemade by the President with the consent of the Commission on Appointments, as provided in Section 16, ArticleVII of the Constitution. It is not quite correct to argue, as the petitioner does, that the power of the Commission on Appointments to review and confirmappointments made by the Presidentis a "derogation of the Chief Executive's appointingpower." 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 confirmingappointments is partof the power of appoi ntment itself. It is,therefore, executive rather than legislativein nature. In givingthis power to an organ of the legislativedepartment, the Constitution merely provides a detail in the scheme of checks and balances between the executive and legislati veorgans of the government. (Phil.Political Lawby Sinco,11th ed., p. 266). WHEREFORE, I vote to dismissthepetition. Medialdea, J., dissenting: Separate Opinions GUTIERREZ, JR., J.: DissentingOpinion With all due respect for the contrary view of the majority in the Court, I maintain thatit is askingtoo much to expect a constitutional rulingwhich results in absurd or irrational consequences to ever become settled. The President and Congress, the appointees concerned, and the general public may i n time accept the Sarmiento III v. Mison rulingbecausethis Courthas the final word on what constitutional provisionsaresupposed to mean but the incongruity will remain stickingoutlikea sore thumb. Serious students of the Constitution will continue to be disturbed until the meaning of the consent power of the Commission on Appointments is straightened out either through a re-examination of this Court's decision or an amendment to the Constitution. Section 16, ArticleVII of the Constitution consists of only three sentences. The officers specified in the firstsentence clearly requireconfirmation by the Commission on Appointments. The officers mentioned in the third sentence justas clearly do not require confirmation.The problem area lies with those in the second sentence. I submit that we should re-examine the three groups of presidential appointees under the three sentences of Section 16. The firstgroup arethe heads of executive departments, ambassadors,other public ministers and consuls,officers of the armed forces from colonel or naval captain,and other officers whose appointments are vested in the President by the Constitution.The firstsentence of Section 16 state they must be confirmed by the Commission on Appointments. The third group are officers lower in rank whose appointments Congress has by lawvested in the President alone. They need no confirmation.
- 45. The second groupof presidential appointees are"all other officers of the Government whose appointments are not otherwise provided for by lawand those whom he may be authorized by lawto appoint." To which group do they belong?-Group I requiringconfirmation or Group 3 where confirmation is notneeded? No matter how often and how longI read the second sentence of Section 16, I simply cannot associatethe officers mentioned therein as formingpart of those referred to in the third sentence. Why am I constrained to hold this view? (1) If the officers in the firstgroup arethe only appointees who need confirmation,there would be no need for the second and third sentences of Section 16. They become superfluous.Any one not falling under an express listingwould need no confirmation.I think the Court is wrong in treating two carefully crafted and significantprovisionsof the fundamental lawas superfluities.Except for the most compellingreasons,which do not existhere, no constitutional provision should beconsidered a useless surplusage. (2) As strongly stressed by JusticeIsagani Cruzhere and in our earlier dissent,the majority view results in the absurd consequence where one of several hundred colonels and naval captainsmustbe confirmed but such important officers as the Governor of the Central Bank with broad powers over the nation's economy and future stability or the Chairman of the Commission on Human Rights whose office callsfor no less than a constitutional mandatedo not have to be scrutinized by the Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough scrutiny duringthe confirmation process whilethe Undersecretary of Foreign Affairs who sends him there and who exercises control over his acts can be appointed by the Presidentalone? Why should we interpret Section 16 in such a strangeand irrational manner when no strained construction is needed to give it a logical and moretraditional and understandablemeaning.? (3) The second sentence of Section 16 starts with,"He shall also appoint...." Whenever we see the word "also"in a sentence, we associateitwith preceding sentences, never with the different sentence that follows.On the other hand, the third sentence specifies "other officers lower in rank' who areappointed pursuantto lawby the President "alone." This can only mean that the higher rankingofficers in the second sentence must also be appointed with the concurrenceof the Commission on Appointments. When the Constitution requires Congress to specify who may be appointed by the President alone, we should not add other and higher rankingofficers as also appointed by heralone. The strained interpretation by the Court's majority makes the word "alone" meaningless if the officers to whom "alone"is not appended are also included in the third group. (4) The third sentence of Section 16 requires a positiveact of Congress which vests an appointment in the President alonebefore such an appointment is freed from the scrutiny of the Commission on Appointments. By express constitutional mandate,it is Congress which determines who do not need confirmation.Under the majority rulingof the Court, if Congress creates an important office and requires the consent of the Commission before a presidential appointmentto that officeis perfected, such a requirement would be unconstitutional.I believethat the Constitution was never intended to so restrictthe lawmakingpower. The Court has no jurisdiction to limitthe plenary lawmakingpower of the people's elected representatives through an implied and,I must again add,a strained reading of the plain text of Section 16. Any restriction of legislativepower must be categorical,express,and specific-never implied or forced. (5) The Constitution specifies clearly thepresidential 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 arenot confirmed becausethe Judicial and Bar Council screens nominees before their names are forwarded to the President. The Vice-Presidentas a cabinetmember needs no confirmation becausethe Constitution says so.He or she is chosen by the nation's entire electorate and is only a breath away from the Presidency.Those fallingunder the third sentence of Section 16, Article VII do not have to be confirmed because the Constitution gives Congress the authority to free lower rankingofficialswhosepositions arecreated by lawfrom that requirement. I believe that we in the Court have no power to add by implication to the listof presidential appointees whom the Constitution in clear and categorical words declares as notneeding confirmation. (6) As stated in my dissentin Sarmiento III v. Mison, the Commission on Appointments is an important constitutional body which helps givefuller expression to the democratic principles inherent in our presidential formof government. There are those who would render innocuous the Commission's power or perhaps even move for its abolition as a protestagainstwhatthey believe is too much horsetradingor sectarian politics in the exerciseof its functions.Since the Presidentis a genuinely liked and popular leader,personally untouched by scandal,who appears to be motivated only by the sincerestof intentions,these people would want the Commission to routinely rubberstamp those whom she appoints to high office. Unfortunately, we cannot have one readingof Section 16 for popular Presidents and another interpretation for more mediocre disliked,and even abusiveor dictatorial ones.Precisely,Section 16 was intended to check abuseor ill-considered appointments by a President who belongs to the latter class. It is not the judiciary and certainly notthe appointed bureaucracy butCongress which truly represents the people. We should notexpect Congress to act only as the selfless Idealists,the wel l- meaning technocrats, the philosophers,and the coffee-shop pundits would have itmove. The masses of our people are poor and underprivileged,without the resources or the time to get publicly involved in the intricateworkings of Government, and often ill-informed or functionally illiterate. These masses together with the propertied gentry and the elite classcan express their divergent views only through their Senators and Congressmen. Even the buffoons and retardates deserve to have their interests considered and aired by the people's representatives. In the democracy we have and which we try to improve upon, the Commission on Appointments cannotbe expected to function likea mindless machinewithout any debates or even imperfections. The discussionsand wranglings,
- 46. the delays andposturingarepart of the democratic process.They should never be used as arguments to restrictlegislativepower where the Constitution does not expressly providefor such a limitation. The Commission on Human Rights is a very important office. Our country is beset by widespread insurgency,marked inequity in the ownership and enjoyment of wealth and political power,and dangerous conflicts arisingfromIdeological,ethnic and religious differences.The tendency to use force and violent means againstthosewho hold oppositeviews appears irresistibleto the holders of both governmental and rebel firepower. The President is doubly careful in the choiceof the Chairman and Members of the Commission on Human Rights. Fully awareof the rulingin Sarmiento III v. Mison, she wants the appointments to be a jointresponsibility of the Presidency and Congress,through the Commission on Appointments. She wants a more thorough screeningprocess for these sensitivepositions.She wants only the best to survivethe process. Why should we tell both the President and Congress that they are wrong.? Again, I fail to see why the captain of a naval boatordered to firebroadsides againstrebel concentrations should receivegreater scrutiny in his appointmentthan the Chairman of the Human Rights Commission who has infinitely morepower and opportunity to bringthe rebellion to a justand satisfactory end. But even if I were to agree with the Sarmiento III v. Mison ruling,I would still includethe Chairman of the Human Rights Commission as oneof the "other officers whoseappointments are vested in him in this Constitution"under the firstsentence of Section 16, Article VII.Certainly,the chairman cannotbe appointed by Congress or the Supreme Court. Neither should we read Article XIII of the Constitution as classifyingthe chairman amongthe lower rankingofficers who by lawmay be appointed by the head of an executive department, agency, commission,or board.The Constitution created the independent office.The Presidentwas intended to appointits chairman. I, therefore, regretfully reiterate my dissentfrom the Sarmiento III v. Mison rulingand join in the call for a re-examination of its doctrine. CRUZ, J., dissenting: This is as good a time as any to re-examine our rulingin Sarmiento v. Mison,which was adopted by the Court more than a year ago over two dissents.The President of the Philippines hastaken a second look at it, and so too has the Commission on Appointments representing both Hous es of the Congress of the Philippines.Itappears thatthey arenot exactly certain now that the decision in that casewas correct after all.I believeit will notbe amiss for us too, in a spiritof humility,to read the Constitution again on the possibility thatwe may have misread itbefore. The ponencia assumes that we were rightthe firsttime and that the Mison caseis settled—there is no need to re-examine it. It therefore approaches the problem at hand from another perspective and would sustain thepetitioner on an additional ground. The theory is that the petitioner's firstappointment on 17 December 1988 was valid even if not confirmed, conformably to Mison,and could not be replaced with the second appointment on 14 January 1989 becausethere was no vacancy to fill.By this reasoning,the opinion would definitely avoid the question squarely presented to the Court, viz., whether or not the Chairman of the Commission on Human Rights is subjectto confirmation as required now by both the Presidentof the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the Mison rulingin the lightof this supervening significantalbeitdecidedly notcontrollingcircumstance. The majority makes its ratiocination sound so simple,but I find I am unableto agree. I think we must address the legal question frontally instead of fallingback on a legal sleight-of hand of now-you-see- it-now-you-don't. As one who never agreed with the bison rulingin the firstplace,I suspectthat the seeming diffidence in applyingitcategorically to the caseatbar is due to a degree of uneasiness over its correctness.I think this is the reason another justification had to be offered to bolster Mison. In my dissentin Alison,I specifically mentioned the Chairman of the Commission on Human Rights as among the importantofficers who would not have to be confirmed if the majority view were to be followed. By contrast,and inexplicably,thecolonel in the armed forces would need confirmation although he is not a constitutional officer with the serious responsibilities of the former. Also not to be confirmed are the Governor of the Central Bank unlikethe relatively minor multisectoral representative of the regional consultativecommission,and the Undersecretary of Foreign Affairs although the consul,who is his subordinate,would need confirmation.When I pointed to these incongruous situations,I was told itwas not our placeto question the wisdom of the Constitution. What I was questioningwas not the wisdomof the Constitution but the wisdom of our interpretation which I said would lead to absurd consequences.But only JusticeGutierrez agreed with me. Now the chickens have come home to roost.The petitioner asks us to unequivocally apply our own rulingin Alison,butwe are equivocating.The ponencia would sustain the petitioner by a circumlocution,such as itis,as if itdoes not think Mison,will sufficefor its conclusion. As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a clear indication thatthe Presidentof the Philippines no longer agrees with the Mison,ruling,at least insofar as itapplies to the present case. Signifi cantly theCommission on Appointments, which was also awareof Mison, has as clearly rejected it by actingon the appointment. These meaningful developments must give us pause. We may have committed an error in Mison,which is bad enough, and may be persistingin itnow, which is worse.
- 47. Coming now tothe theory of the majority,I regret I am also unableto accept it. Consistentwith my view in Mison,I submitthat what President Aquino extended to the petitioner on 17 December 1988 was an ad interim appointment that although immediately effective upon acceptancewas still subject to confirmation.I cannotagree that when the President said the petitioner could and enter into the performance of her duties, "all thatremained for Bautista to do was to reject or accept the appointment." In fact, on the very day itwas extended, the ad interim appointment was submitted by the President of the Philippines to the Commission on Appointments "for confirmation." The ponencia says that the appointment did not need any confirmation,beingthe soleactof the President under the Mison ruling.That would have settled the question quite conclusively,butthe opinion goes on to argue another justification thatI for one find unnecessary,not to say untenable. I sense here a palpableeffort to bolster Mison because of the apprehension that itis fallinga part. Of course,there was no vacancy when the nomination was made on 14 January 1989.There is no question that the petitioner was still validly holdingtheoffice by virtue of her ad interim appointment thereto on 17 December 1988.The nomination made later was unnecessary becausethe ad interim appointment was still effective.When the Commission on Appointments sent the petitioner the letters dated 9 January 1989 and 10 January 1989 requiringher to submit certain data and invitingher to appear before it, itwas actingnot on the nomination but on the ad interim appointment. What was disapproved was the ad interim appointment, not the nomination. The nomination of 14 January 1989 is notin issuein this case.Itis entirely immaterial.At best, itis important only as an affirmation of the President's acknowledgment that the Chairman of the Commission on Human Rights must be confirmed under ArticleVII, Section 16 of the Constitution. It does not follow,of course,that simply becausethe President of the Philippines has changed her mind, and with the expressed supportof the Commission on Appointments, we should docilely submitand reverse Mison.That is not how democracy works. The Court is independent. I do suggest, however, that the majority could have erred in that caseand that the leastwe can do now is to take a more careful look at the decision.Let us check our bearings to make sure we have not gone astray. That is all I ask I repeat my view that the Chairman of the Commission on Human Rights is subjectto confirmation by the Commission on Appointments, for the reasons stated in my dissentin Mison Accordingly,I vote to DENY the petition. GRIÑO-AQUINO, J.: dissenting: I believe that the appointments of the chairman and the members of the Commissi on on Human Rights by the President require review and confirmation by the Commission on Appointments in view of the followingprovision of Section 16, ArticleVII of the 1987 Constitution: SEC. 16. The President shall nominateand,with the consent of the Commission on Appointments, appointthe heads of the executive departments, ambassadors, other public ministers and consuls,or officers of the armed forces from the rank of colonel or naval captain,and other officers whose appointments are vested in him in this Constitution.... In my view, the "other officers"whose appointments are vested in the President in the Constitution are theconstitutional officers, meaning those who hold offices created under the Constitution,and whose appointments are not otherwise provided for in the Charter. Those constitutional officersare the chairmen and members of the Constitutional Commissions,namely:the Civil ServiceCommission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII).These constitutional commissions are,without excaption,declared to be "independent," but whilein the caseof the Civil ServiceCommission,the Commission on Elections and the Commission on Audit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shall beappointed 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 clauseis found in Section 17, Article VIII creatingthe Commission on Human Rights. Its absence, however, does not detract from, or diminish,the President's power to appointthe Chairman and Commissioners of the said Commission.Thesourceof that power is the firstsentence of Section 16, ArticleVII of the Constitution for: (1) the Commission on Human Rights is an officecreated 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 bemade by the President with the consent of the Commission on Appointments, as provided in Section 16, ArticleVII of the Constitution. It is not quite correct to argue, as the petitioner does, that the power of the Commission on Appointments to review and confirmappointments made by the Presidentis a "derogation of the Chief Executive's appointingpower." 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 confirmingappointments is partof the power of appointment itself. It is,therefore, executive rather than legislativein nature. In givingthis power to an organ of the legislativedepartment, the Constitution merely provides a detail in the scheme of checks and balances between the executive and legislativeorgans of the government. (Phil.Political Lawby Sinco,11th ed., p. 266). WHEREFORE, I vote to dismissthepetition. Medialdea, J., dissenting:
- 48. Footnotes 1 G.R. No.79974,17 December 1987,156 SCRA 549. 2 See Section 2 (B), Section 2(C), and Section 2(D), ArticleIX, 1987 Constitution. 3 Annex A, Petition, Rollo,p. 8. 4 Sec. 17(l),Art. XIII,1987 Constitution. 5 Annex B, Petition, Rollo,p. 9. 6 Annex C, Petition, Rollo,p. 10. 7 Annex D, Petition, Rollo,p. 11-1 3. 8 Annex D-1, Petition, Rollo,p. 14. 9 Annex E, Petition, Rollo,pp. 15-16. 10 Emphasis supplied. 11 Annex 1, Commission's comment, Rollo,p. 53. 12 Annex 2, Commission's comment, Rollo,p. 54. 13 Annex 3, Commission's comment, Rollo,p. 55. 14 Rollo,p. 5. 15 Rollo,pp. 5-6. 16 Resolution of 2 February 1989,Rollo,p. 17. 17 Resolution of 9 February 1989,Rollo,p. 92. 18 Rollo,pp. 145-150. 19 Rollo,pp. 100-144. 20 Rollo,pp. 153-183. 21 Resolution of 28 February 1989,Rollo,p. 183-A. 22 Rollo,pp. 189-201. 23 1 Cranch 60, 2 Law Ed., U.S. 5-8. 24 Official Gazette, Vol. 83, July 29, 1987,p. 3307. 25 Official Gazette, Vol. 83, May 11, 1987,p. 2270. 26 100 Phil.at683. 27 100 Phil.at694. 28 Record of the 1986 Constitutional Commission,Vol.3,August 26,1986,p. 718. 29 Ibid., P. 728. 30 Ibid., P. 730. 31 Ibid., P. 734. 32 Ibid., P. 737. 33 Ibid., p. 743. 34 Ibid., p. 747. 35 Ibid., p. 748. 36 G.R. No. 69870,Naseco vs.NLRC: G.R. No. 70295,Eugenia C. Credo vs. NLRC, 29 November 1988. 37 Sec. 13, Rep. Act No. 3019; People of the Philippines vs.Hon. Rodolfo B. Albano , G.R. No. L-45376-77, July 26, 1988; Luciano vs,Provincial Governor,20 SCRA 516. Homework Help
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