Professional Documents
Culture Documents
Flores vs. Drilon
Flores vs. Drilon
Flores vs. Drilon
SUPREME COURT
Manila
EN BANC
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANEL !. FGUEROA, ROGELO T. PALO, DOMNGO A. JADLOC, CARLTO T. CRU" #n$
MANUEL P. RE!ES, petitioner,
vs.
%ON. FRAN&LN M. DRLON, E'e(u)*+e Se(,e)#,-, #n$ RC%ARD J. GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.
BELLOSLLO, J.:
The constitutionality of Sec. !, par. "d#, of R.A. $%%$,
1
other&ise 'no&n as the (Bases Conversion
and )evelop*ent Act of ++%,( under &hich respondent Mayor Richard ,. -ordon of .lon/apo City
&as appointed Chair*an and Chief E0ecutive .fficer of the Subic Bay Metropolitan Authority "SBMA#,
is challen/ed in this ori/inal petition &ith prayer for prohibition, preli*inary in1unction and te*porary
restrainin/ order (to prevent useless and unnecessary e0penditures of public funds by &ay of salaries
and other operational e0penses attached to the office . . . .(
2
Para/raph "d# reads 2
"d# Chairman administrator 2 The President shall appoint a professional *ana/er as
ad*inistrator of the Subic Authority &ith a co*pensation to be deter*ined by the
Board sub1ect to the approval of the Secretary of Bud/et, &ho shall be the ex oficio
chair*an of the Board and &ho shall serve as the chief e0ecutive officer of the Subic
Authority3 Proided, ho!eer, "hat for the first #ear of its operations from the effectiit#
of this Act, the ma#or of the Cit# of $longapo shall %e appointed as the chairman and
chief executie officer of the Su%ic Authorit# "e*phasis supplied#.
Petitioners, &ho clai* to be ta0payers, e*ployees of the 4.S. 5acility at the Subic, 6a*bales, and
officers and *e*bers of the 5ilipino Civilian E*ployees Association in 4.S. 5acilities in the
Philippines, *aintain that the proiso in par. "d# of Sec. ! herein7above 8uoted in italics infrin/es on
the follo&in/ constitutional and statutory provisions3 "a# Sec. $, first par., Art. 9:7B, of the Constitution,
&hich states that (&n'o electie official shall %e eligi%le for appointment or designation in an# capacit#
to an# pu%lic officer or position during his tenure,(
3
because the City Mayor of .lon/apo City is an
elective official and the sub1ect posts are public offices; "b# Sec. <, Art. =99, of the Constitution, &hich
provides that (>t?he President shall . . . . appoint all other officers of the -overn*ent &hose
appoint*ents are not other&ise proided for by la&, and those &ho* he *ay be authori@ed by la& to
appoint(,
4
since it &as Con/ress throu/h the 8uestioned proiso and not the President &ho appointed
the Mayor to the sub1ect posts;
.
and, "c# Sec. %<, par. "/#, of the .*nibus Election Code, &hich
says3
Sec. %<. Prohi%ited Acts. 2 The follo&in/ shall be /uilty of an election offense3 . . . "/#
Appoint*ent of ne& e*ployees, creation of ne& position, pro*otion, or /ivin/ salary
increases. 2 )urin/ the period of forty7five days before a re/ular election and thirty
days before a special election, "# any head, official or appointin/ officer of a
/overn*ent office, a/ency or instru*entality, &hether national or local, includin/
/overn*ent7o&ned or controlled corporations, &ho appoints or hires any ne&
e*ployee, &hether provisional, te*porary or casual, or creates and fills any ne&
position, e0cept upon prior authority of the Co**ission. The Co**ission shall not
/rant the authority sou/ht unless it is satisfied that the position to be filled is essential
to the proper functionin/ of the office or a/ency concerned, and that the position shall
not be filled in a *anner that *ay influence the election. As an e0ception to the
fore/oin/ provisions, a ne& e*ployee *ay be appointed in case of ur/ent need3
Proided, ho!eer, That notice of the appoint*ent shall be /iven to the Co**ission
&ithin three days fro* the date of the appoint*ent. Any appoint*ent or hirin/ in
violation of this provision shall be null and void. "%# Any /overn*ent official &ho
pro*otes, or /ives any increase of salary or re*uneration or privile/e to any
/overn*ent official or e*ployee, includin/ those in /overn*ent7o&ned or controlled
corporations . . . .
1
for the reason that the appoint*ent of respondent -ordon to the sub1ect posts *ade by respondent
E0ecutive Secretary on ! April ++% &as &ithin the prohibited AB7day period prior to the May ++%
Elections.
The principal 8uestion is &hether the proiso in Sec. !, par. "d#, of R.A. $%%$ &hich states,
(Proided, ho!eer, "hat for the first #ear of its operations from the effectiit# of this Act, the ma#or of
the Cit# of $longapo shall %e appointed as the chairman and chief executie officer of the Su%ic
Authorit#,( violates the constitutional proscription a/ainst appoint*ent or desi/nation of elective
officials to other /overn*ent posts.
9n full, Sec. $ of Art. 9:7B of the Constitution provides3
No elective official shall be eli/ible for appoint*ent or desi/nation in any capacity to
any public office or position durin/ his tenure.
4nless other&ise allo&ed by la& or by the pri*ary functions of his position, no
appointive official shall hold any other office or e*ploy*ent in the -overn*ent or any
subdivision, a/ency or instru*entality thereof, includin/ /overn*ent7o&ned or
controlled corporations or their subsidiaries.
The section e0presses the policy a/ainst the concentration of several public positions in one person,
so that a public officer or e*ployee *ay serve full7ti*e &ith dedication and thus be efficient in the
delivery of public services. 9t is an affir*ation that a public office is a full7ti*e 1ob. Cence, a public
officer or e*ployee, li'e the head of an e0ecutive depart*ent described in Ciil (i%erties )nion .
Executie Secretar#, *.+. ,o. -.-/0, and Anti1*raft (eague of the Philippines, Inc. . Philip Ella C.
Juico, as Secretar# of Agrarian +eform, -.R. No. D!DB,
/
(. . . . should be allo&ed to attend to his
duties and responsibilities &ithout the distraction of other /overn*ental duties or e*ploy*ent. Ce
should be precluded fro* dissipatin/ his efforts, attention and ener/y a*on/ too *any positions of
responsibility, &hich *ay result in hapha@ardness and inefficiency . . . .(
Particularly as re/ards the first para/raph of Sec. $, ("t#he basic idea really is to prevent a situation
&here a local elective official &ill &or' for his appoint*ent in an e0ecutive position in /overn*ent, and
thus ne/lect his constituents . . . .(
7
9n the case before us, the sub1ect proiso directs the President to appoint an elective official, i.e., the
Mayor of .lon/apo City, to other /overn*ent posts "as Chair*an of the Board and Chief E0ecutive
.fficer of SBMA#. Since this is precisely &hat the constitutional proscription see's to prevent, it needs
no stretchin/ of the i*a/ination to conclude that the proiso contravenes Sec. $, first par., Art. 9:7B, of
the Constitution. Cere, the fact that the e0pertise of an elective official *ay be *ost beneficial to the
hi/her interest of the body politic is of no *o*ent.
9t is ar/ued that Sec. +A of the Eocal -overn*ent Code "E-C# per*its the appoint*ent of a local
elective official to another post if so allo&ed by la& or by the pri*ary functions of his office.
0
But, the
contention is fallacious. Section +A of the E-C is not deter*inative of the constitutionality of Sec. !,
par. "d#, of R.A. $%%$, for no le/islative act can prevail over the funda*ental la& of the land.
Moreover, since the constitutionality of Sec. +A of E-C is not the issue here nor is that section sou/ht
to be declared unconstitutional, &e need not rule on its validity. Neither can &e invo'e a practice
other&ise unconstitutional as authority for its validity.
9n any case, the vie& that an elective official *ay be appointed to another post if allo&ed by la& or by
the pri*ary functions of his office, i/nores the clear7cut difference in the &ordin/ of the t&o "%#
para/raphs of Sec. $, Art.
9:7B, of the Constitution. Fhile the second para/raph authori@es holdin/ of *ultiple offices by an
appointie official &hen allo&ed by la& or by the pri*ary functions of his position, the first para/raph
appears to be *ore strin/ent by not providin/ any e0ception to the rule a/ainst appoint*ent or
desi/nation of an electie official to the /overn*ent post, e0cept as are particularly reco/ni@ed in the
Constitution itself, e./., the President as head of the econo*ic and plannin/ a/ency;
9
the =ice7
President, &ho *ay be appointed Me*ber of the Cabinet;
10
and, a *e*ber of Con/ress &ho *ay be
desi/nated ex officio *e*ber of the ,udicial and Bar Council.
11
The distinction bet&een the first and second para/raphs of Sec. $, Art. 9:7B, &as not accidental &hen
dra&n, and not &ithout reason. 9t &as purposely sou/ht by the drafters of the Constitution as sho&n in
their deliberation, thus 2
2
MR. M.NS.). 9n other &ords, &hat then Co**issioner is sayin/, Mr. Presidin/
.fficer, is that the prohibition is *ore strict &ith respect to elective officials, because in
the case of appointive officials, there *ay be a la& that &ill allo& the* to hold other
positions.
MR. 5.6. Ges, 9 su//est &e *a'e that difference, because in the case of appointive
officials, there &ill be certain situations &here the la& should allo& the* to hold so*e
other positions.
12
The distinction bein/ clear, the e0e*ption allo&ed to appointive officials in the second para/raph
cannot be e0tended to elective officials &ho are /overned by the first para/raph.
9t is further ar/ued that the SBMA posts are *erely ex officio to the position of Mayor of .lon/apo
City, hence, an e0cepted circu*stance, citin/ Ciil (i%erties )nion . Executie Secretar#,
13
&here &e
stated that the prohibition a/ainst the holdin/ of any other office or e*ploy*ent by the President,
=ice7President, Me*bers of the Cabinet, and their deputies or assistants durin/ their tenure, as
proided in Sec. !, Art. =99, of the Constitution, does not co*prehend additional duties and functions
re2uired %# the primar# functions of the officials concerned, !ho are to perform them in an ex officio
capacit# as proided %# la!, !ithout receiing an# additional compensation therefor.
This ar/u*ent is apparently based on a &ron/ pre*ise. Con/ress did not conte*plate *a'in/ the
sub1ect SBMA posts as ex officio or auto*atically attached to the .ffice of the Mayor of .lon/apo City
&ithout need of appoint*ent. The phrase (shall be appointed( un8uestionably sho&s the intent to
*a'e the SBMA posts appointive and not *erely ad1unct to the post of Mayor of .lon/apo City. Cad it
been the le/islative intent to *a'e the sub1ect positions ex officio, Con/ress &ould have, at least,
avoided the &ord (appointed( and, instead, (ex officio( &ould have been used.
14
Even in the Senate deliberations, the Senators &ere fully a&are that sub1ect proiso *ay contravene
Sec. $, first par., Art. 9:7B, but they nevertheless passed the bill and decided to have the controversy
resolved by the courts. 9ndeed, the Senators &ould not have been concerned &ith the effects of Sec.
$, first par., had they considered the SBMA posts as ex officio.
Co/ni@ant of the co*plication that *ay arise fro* the &ay the sub1ect proiso &as stated, Senator
Rene Sa/uisa/ re*ar'ed that (if the Conference Co**ittee 1ust said (the Mayor shall be the
Chair*an( then that should foreclose the issue. 9t is a le/islative choice.(
1.
The Senator too' a vie&
that the constitutional proscription a/ainst appoint*ent of elective officials *ay have been
sidestepped if Con/ress attached the SBMA posts to the Mayor of .lon/apo City instead of directin/
the President to appoint hi* to the post. Fithout passin/ upon this vie& of Senator Sa/uisa/, it
suffices to state that Con/ress intended the posts to be appointive, thus nibblin/ in the bud the
ar/u*ent that they are ex officio.
The analo/y &ith the position of Chair*an of the Metro Manila Authority *ade by respondents cannot
be applied to uphold the constitutionality of the challen/ed proiso since it is not put in issue in the
present case. 9n the sa*e vein, the ar/u*ent that if no elective official *ay be appointed or
desi/nated to another post then Sec. D, Art. 9:7B, of the Constitution allo&in/ hi* to receive double
co*pensation
1/
&ould be useless, is non se2uitur since Sec. D does not affect the constitutionality of
the sub1ect proiso. 9n any case, the =ice7President for e0a*ple, an elective official &ho *ay be
appointed to a cabinet post under Sec. !, Art. =99, *ay receive the co*pensation attached to the
cabinet position if specifically authori@ed by la&.
Petitioners also assail the le/islative encroach*ent on the appointin/ authority of the President.
Section !, par. "d#, itself vests in the President the po&er to appoint the Chair*an of the Board and
the Chief E0ecutive .fficer of SBMA, althou/h he really has no choice under the la& but to appoint
the Mayor of .lon/apo City.
As *ay be defined, an (appoint*ent( is (>t?he desi/nation of a person, by the person or persons
havin/ authority therefor, to dischar/e the duties of so*e office or trust,(
17
or (>t?he selection or
desi/nation of a person, by the person or persons havin/ authority therefor, to fill an office or public
function and dischar/e the duties of the sa*e.
10
9n his treatise, Philippine Political
(a!,
19
Senior Associate ,ustice 9sa/ani A. Cru@ defines appoint*ent as (the selection, by the
authority vested &ith the po&er, of an individual &ho is to e0ercise the functions of a /iven office.(
Considerin/ that appoint*ent calls for a selection, the appointin/ po&er necessarily e0ercises a
discretion. Accordin/ to Foodbury, ,.,
20
(the choice of a person to fill an office constitutes the
3
essence of his appoint*ent,(
21
and Mr. ,ustice Malcol* adds that an (>a?ppoint*ent to office is
intrinsically an e0ecutive act involvin/ the e0ercise of discretion.(
22
9n Pamantasan ng (ungsod ng
Ma#nila . Intermediate Appellate Court
23
&e held3
The po&er to appoint is, in essence, discretionary. The appointin/ po&er has the ri/ht
of choice &hich he *ay e0ercise freely accordin/ to his 1ud/*ent, decidin/ for hi*self
&ho is best 8ualified a*on/ those &ho have the necessary 8ualifications and
eli/ibilities. 9t is a prero/ative of the appointin/ po&er . . . .
9ndeed, the po&er of choice is the heart of the po&er to appoint. Appoint*ent involves an e0ercise of
discretion of &ho* to appoint; it is not a *inisterial act of issuin/ appoint*ent papers to the
appointee. 9n other &ords, the choice of the appointee is a funda*ental co*ponent of the appointin/
po&er.
Cence, &hen Con/ress clothes the President &ith the po&er to appoint an officer, it "Con/ress#
cannot at the sa*e ti*e li*it the choice of the President to only one candidate. .nce the po&er of
appoint*ent is conferred on the President, such confer*ent necessarily carries the discretion of
&ho* to appoint. Even on the prete0t of prescribin/ the 8ualifications of the officer, Con/ress *ay not
abuse such po&er as to divest the appointin/ authority, directly or indirectly, of his discretion to pic'
his o&n choice. Conse8uently, &hen the 8ualifications prescribed by Con/ress can only be *et by
one individual, such enact*ent effectively eli*inates the discretion of the appointin/ po&er to choose
and constitutes an irre/ular restriction on the po&er of appoint*ent.
24
9n the case at bar, &hile Con/ress &illed that the sub1ect posts be filled &ith a presidential appointee
for the first year of its operations fro* the effectivity of R.A. $%%$, the proiso nevertheless li*its the
appointin/ authority to only one eli/ible, i.e., the incu*bent Mayor of .lon/apo City. Since only one
can 8ualify for the posts in 8uestion, the President is precluded fro* e0ercisin/ his discretion to
choose &ho* to appoint. Such supposed po&er of appoint*ent, sans the essential ele*ent of choice,
is no po&er at all and /oes a/ainst the very nature itself of appoint*ent.
Fhile it *ay be vie&ed that the proiso *erely sets the 8ualifications of the officer durin/ the first year
of operations of SBMA, i.e., he *ust be the Mayor of .lon/apo City, it is *anifestly an abuse of
con/ressional authority to prescribe 8ualifications &here only one, and no other, can 8ualify.
Accordin/ly, &hile the confer*ent of the appointin/ po&er on the President is a perfectly valid
le/islative act, the proiso li*itin/ his choice to one is certainly an encroach*ent on his prero/ative.
Since the ineli/ibility of an elective official for appoint*ent re*ains all throu/hout his tenure or durin/
his incu*bency, he *ay ho&ever resi/n first fro* his elective post to cast off the constitutionally7
attached dis8ualification before he *ay be considered fit for appoint*ent. The deliberation in the
Constitutional Co**ission is enli/htenin/3
MR. )A=9)E. .n Section A, pa/e !, line D, 9 propose the substitution of the &ord (ter*(
&ith TEN4RE.
MR. 5.6. The effect of the proposed a*end*ent is to *a'e possible for one to resi/n
fro* his position.
MR. )A=9)E. Ges, &e should allo& that prero/ative.
MR. 5.6. Resi/n fro* his position to accept an e0ecutive position.
MR. )A=9)E. Besides, it *ay turn out in a /iven case that because of, say, incapacity,
he *ay leave the service, but if he is prohibited fro* bein/ appointed &ithin the ter*
for &hich he &as elected, &e *ay be deprivin/ the /overn*ent of the needed
e0pertise of an individual.
2.
Conse8uently, as lon/ as he is an incu*bent, an elective official re*ains ineli/ible for appoint*ent to
another public office.
Fhere, as in the case of respondent -ordon, an incu*bent elective official &as, not&ithstandin/ his
ineli/ibility, appointed to other /overn*ent posts, he does not auto*atically forfeit his elective office
nor re*ove his ineli/ibility i*posed by the Constitution. .n the contrary, since an incu*bent elective
official is not eli/ible to the appointive position, his appoint*ent or desi/nation thereto cannot be valid
in vie& of his dis8ualification or lac' of eli/ibility. This provision should not be confused &ith Sec. !,
4
Art. =9, of the Constitution &here ("n#o Senator or Me*ber of the Couse of Representatives *ay hold
any other office or e*ploy*ent in the -overn*ent . . . durin/ his ter* &ithout forfeitin/ his seat . . . .(
The difference bet&een the t&o provisions is si/nificant in the sense that incu*bent national
le/islators lose their elective posts only after they have been appointed to another /overn*ent office,
&hile other incu*bent elective officials *ust first resi/n their posts before they can be appointed, thus
runnin/ the ris' of losin/ the elective post as &ell as not bein/ appointed to the other post. 9t is
therefore clear that ineli/ibility is not directly related &ith forfeiture of office. (. . . . The effect is 8uite
different &here it is e0pressly proided by la& that a person holdin/ one office shall be ineli/ible to
another. Such a provision is held to incapacitate the incu*bent of an office fro* acceptin/ or holdin/
a second office "State e0 rel. =an Ant&erp v Co/an, %D! Ala. AAB, %D So %d %BD; McFillia*s v Neal,
!H -a $!!, < SE $%# and to render his election or appoint*ent to the latter office void "State e0
rel. Childs v Sutton, <! Minn A$, <B NF %<%. Annotation3 AH AER +AB# or voidable "Bas'in v State,
H$ .'la %$%, %!% p !DD, AH AER +A#.(
2/
(Fhere the constitution, or statutes declare that persons
holdin/ one office shall be ineli/ible for election or appoint*ent to another office, either /enerally or of
a certain 'ind, the prohibition has been held to incapacitate the incu*bent of the first office to hold the
second so that any atte*pt to hold the second is void "Ala. 2 State e0 rel. =an Ant&erp v. Co/an, %D
So %d %BD, %D! Ala AAB#.(
27
As incu*bent elective official, respondent -ordon is ineli/ible for appoint*ent to the position of
Chair*an of the Board and Chief E0ecutive of SBMA; hence, his appoint*ent thereto pursuant to a
le/islative act that contravenes the Constitution cannot be sustained. Ce ho&ever re*ains Mayor of
.lon/apo City, and his acts as SBMA official are not necessarily null and void; he *ay be considered
a de facto officer, (one &hose acts, thou/h not those of a la&ful officer, the la&, upon principles of
policy and 1ustice, &ill hold valid so far as they involve the interest of the public and third persons,
&here the duties of the office &ere e0ercised . . . . under color of a 'no&n election or appoint*ent,
void because the officer !as not eligi%le, or because there &as a &ant of po&er in the electin/ or
appointin/ body, or by reason of so*e defect or irre/ularity in its e0ercise, such ineli/ibility, &ant of
po&er or defect bein/ un'no&n to the public . . . . >or? under color of an election, or appointment, %# or
pursuant to a pu%lic unconstitutional la!, %efore the same is ad3udged to %e such "State vs. Carroll, !D
Conn., A++; Filco0 vs. S*ith, B Fendell >N.G.?, %!; % A*. )ec., %!; SheehanIs Case, %% Mass,
AAB, %! A*. Rep., !%!#.(
20
Confor*ably &ith our rulin/ in Ciil (i%erties )nion, any and all per diems, allo&ances and other
e*olu*ents &hich *ay have been received by respondent -ordon pursuant to his appoint*ent *ay
be retained by hi*.
The ille/ality of his appoint*ent to the SBMA posts bein/ no& evident, other *atters affectin/ the
le/ality of the 8uestioned proiso as &ell as the appoint*ent of said respondent *ade pursuant
thereto need no lon/er be discussed.
9n thus concludin/ as &e do, &e can only share the la*ent of Sen. Sotero Eaurel &hich he e0pressed
in the floor deliberations of S.B. <AD, precursor of R.A. $%%$, &hen he articulated 2
. . . . "*uch# as &e &ould li'e to have the present Mayor of .lon/apo City as the Chief
E0ecutive of this Authority that &e are creatin/; "*uch# as 9, *yself, &ould li'e to
because 9 'no& the capacity, inte/rity, industry and dedication of Mayor -ordon;
"*uch# as &e &ould li'e to /ive hi* this terrific, burdenso*e and heavy responsibility,
&e cannot do it because of the constitutional prohibition &hich is very clear. 9t says3 (No
elective official shall be appointed or desi/nated to another position in any capacity.(
29
5or, indeed, (a Constitution *ust be fir* and i**ovable, li'e a *ountain a*idst the strife of stor*s or
a roc' in the ocean a*idst the ra/in/ of the &aves.(
30
.ne of the characteristics of the Constitution is
per*anence, i.e., (its capacity to resist capricious or &hi*sical chan/e dictated not by le/iti*ate
needs but only by passin/ fancies, te*porary passions or occasional infatuations of the people &ith
ideas or personalities . . . . Such a Constitution is not li'ely to be easily ta*pered &ith to suit political
e0pediency, personal a*bitions or ill7advised a/itation for chan/e.(
31
Er/o, under the Constitution, Mayor -ordon has a choice. Fe have no choice.
FCERE5.RE, the proiso in par. "d#, Sec. !, of R.A. $%%$, &hich states3 (. . . Proided, ho!eer,
"hat for the first #ear of its operations from the effectiit# of this Act, the Ma#or of the Cit# of
$longapo shall %e appointed as the chairman and chief executie officer of the Su%ic Authorit#,( is
declared unconstitutional; conse8uently, the appoint*ent pursuant thereto of the Mayor of .lon/apo
City, respondent Richard ,. -ordon, is I,VA(I4, hence N4EE and =.9).
5
Co&ever, all per diems, allo&ances and other e*olu*ents received by respondent -ordon, if any, as
such Chair*an and Chief E0ecutive .fficer *ay be retained by hi*, and all acts other&ise le/iti*ate
done by hi* in the e0ercise of his authority as officer de facto of SBMA are hereby 4PCEE).
S. .R)ERE).
,arasa, C.J., Cru5, Feliciano, 6idin, *ri7o1A2uino, +egalado, 4aide, Jr., +omero, ,ocon, Melo and
8uiason, JJ., concur.
Padilla, ,., is on leave.
6