4) Aytona v. Castillo

EN BANC
[G.R. No. L-19313. January 19, 1962.]
DOMINADOR R. AYTONA , petitioner, vs. ANDRES V. CASTILLO, ET AL. ,

respondents.
SYLLABUS
1. POLITICAL LAW; APPOINTING POWER; MIDNIGHT OR LAST MINUTES

APPOINTMENT; RULE; EXCEPTION. — As a rule, once an appointment is issued, it
cannot be reconsidered specially where the appointee has quali ed. On the other hand,
the authorities admit of exceptional circumstances justifying revocation such as when
mass ad-interim appointments (350) issued in the last hours of an outgoing Chief
Executive are to be considered by the Commission on Appointments that is different
from that be submitted by an incoming Chief Executive who may not wholly approve of
the selections especially if it is doubtful that the outgoing President exercised double
care in extending such appointments.
2. ID.; ID.; MALACAÑANG'S PRACTICE; REASONS FOR. — It is Malacañang's
practice, which is logical, to submit as-interim appointments only when the
Commission on Appointments is in session. One good reasons for the practice is that
only those who have accepted the appointment and quali ed are submitted for
confirmation.
3. ID.; EXECUTIVE DEPARTMENT; CARE-TAKER ADMINISTRATION; EXTENT OF
AUTHORITY. — After the proclamation of the election of an incoming Chief Executive,
the outgoing Chief Executive is no more than a "care- taker" administration. He is duty
bound to prepare for the orderly transfer of authority to the incoming President and he
should not do acts which, he ought to know, would embarrass or obstruct the policies,
of his successor. It is not for him to use his powers as incumbent President to continue
the political warfare that had ended or to avail himself of presidential prerogatives to
serve partisan purposes.
4. ID.; ID.; ID.; FILLING OF VACANCIES. — The lling up of vacancies in important
positions, if few, and so spaced as to afford some assurance of deliberate action and
careful consideration of the need for the appointment and the appointee's
quali cations may be undoubtedly permitted. But the issuance of 350 appointments in
one night and the planned induction of almost all of them a few hours before the
inauguration of the new President may, with some reason, be regarded by the latter as
an abuse of presidential prerogatives.
5. ID.; ID.; ID.; ID.; DOUBLE CARE NECESSARY. — When the President makes ad-
interim appointments, he exercises a special prerogative and is bound to be prudent to
insure approval of his selection either by previous consultation with the members of the
Commission or by thereafter explaining to them the reason for such selection. Where
the Commission on Appointments that will consider the appointees is different from
that existing at the time of the appointment and where the names are to be submitted
by his successor who may not wholly approved of the selections, the President should
be doubly careful in extending such appointments.
6. ID.; SEPARATION OF POWERS; POWER OF APPOINTMENT; CASE AT BAR. —
CD Technologies Asia, Inc. 2018 cdasiaonline.com
The separation of powers, under the circumstances in the instant case, prevents the
Supreme Court to disregard a presidential directive issued by an incoming President
cancelling "midnight" or "last minute" appointments.
7. ID.; PUBLIC OFFICERS' APPOINTMENT; EQUITABLE RIGHTS; CASE AT BAR. —
Once the appointee has quali ed, the latter's equitable rights can be set up to deny the
power to revoke the appointment. Yet it is doubtful if such equity might be set up in the
present case where rush conditional appointments, hurried maneuvers and other
happenings detracted from that degree of good faith, morality and propriety which
form the basic foundation of claims to equitable relief.
PADILLA, J., concurring:
1. POLITICAL LAW; AD-INTERIM APPOINTMENTS DEFINED. — Ad-interim
appointments that the President may make during the recess of the Congress are
those made during a period of time from the adjournment of the Congress to the
opening session, regular or special, of the same Congress.
2. ID.; ID.; RECESS DEFINED. — The term "recess" in its broadest sense, means
and refers to the intervening period between adjournment of a regular session of one
hundred days exclusive of Sundays, or of a special session which cannot continue
longer than thirty days, and the convening thereof in regular session once every year on
the fourth Monday of January or in special session to consider general legislation or
only such subjects as he (the President) may designate. And such intervening period
refers to the same congress that had adjourned and was to be convened. Such
intervening adjourned and one newly chosen or elected to meet in regular session as
provided for by the Constitution, or in special session by the call of the President.
3. ID.; ID.; "THE NEXT ADJOURNMENT OF CONGRESS DEFINED. — Ad-interim
appointments made during the recess of the Congress are effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress. Therefore, such appointments ceased to be valid after the term of the
Congress existing at the time of the making of such appointments had ended or
expired. Since that Congress no longer exists and hence can no longer convene and
then "adjourn."
BAUTISTA ANGELO, J.,concurring:
1. POLITICAL LAW; AD-INTERIM APPOINTMENTS; RECESS DEFINED. — The term
"recess" has a de nite legal meaning. It means the interval between a session of
Congress that has adjourned and another of the same Congress. It does not refer to
the interval between the session of one Congress and that of another. In that case the
interval is not referred to as a "recess" but adjournment sine die.
2. ID.; AD-INTERIM APPOINTMENT; WHEN DEEMED COMPLETE BODY. — The
Commission on Appointments under our constitutional set-up is not a continuing body
but one that co-exists with the Congress that has created it. This is so because said
Commission is a creation of the Senate and of the House of Representatives. While the
Senate is a continuing body, the House ceases at the end of its fourth year. It cannot
therefore be continuing it being a creation of a body half of which is alive and the other
half has ceased to exist.
3. ID.; AD-INTERIM APPOINTMENT; WHEN DEEMED COMPLETE. — An ad-interim
appointment to be complete must be submitted to the Commission on Appointments
once the same is constituted. It cannot be submitted to the Commission on
Appointments of a different Congress but only to the Commission on Appointments of
the Congress that has created it.
4. ID.; ID.; ID.; APPOINTEE MUST ASSUME OFFICE. — An ad-interim appointment
is not complete until the appointee takes the oath of o ce and actually takes
possession of the position or enters upon the discharge of its duties.
CONCEPCION, J.: concurring in part and dissenting in part:
1. PROHIBITION AND MANDAMUS; ISSUED ONLY WHEN RIGHT IS CLEAR. — The
grant of writs of prohibition and mandamus is ordinarily within the sound discretion of
the courts, to be exercised on equitable principles and that the writs should be issued
when the right to the relief is clear.
2. POLITICAL LAW; APPOINTMENT; WHEN IRREVOCABLE. — Save where the
incumbent has a temporary appointment or is removable at the will of the appointing
power, an appointment once complete, by the performance of all acts required by law
of the appointing power, is irrevocable.
3. ID.; ID.; ERROR OR FRAUD; EFFECT. — An appointment may be revoked by
reason of error of fraud in the manner of appointment but not if the fraud or mistake
refers to the intent of the appointing power in choosing a particular appointee.
4. ID.; AD-INTERIM APPOINTMENT; WHEN COMPLETE AND IRREVOCABLE. — An
ad-interim appointment made during a recess of Congress, is complete and irrevocable
upon the performance of the last act required by law from the appointing power, even
without previous notice to the appointee or acceptance by him, or without subsequent
action of the legislative organ that may terminate its effectivity.
5. ID.; ID.; ID.; WHERE AD-INTERIM MUST BE ACTED UPON BY ANOTHER
AGENCY. — The irrevocability of the ad-interim appointment is more apparent where
the House, Commission on Appointments or other agency of Congress charged with
the function of terminating the effectivity of such appointment, may act thereon, by
approving or disapproving the same.
6. ID.; ID.; CONTINUITY OF COMMISSION ON APPOINTMENTS IMMATERIAL. —
The question whether the Commission on Appointments is or is not a continuing body
cannot affect the determination of whether the appointment may still be revoked once
issued. It is only required by the Constitution that such Commission must have an
opportunity to approve or disapprove the appointment and its inaction, despite such
opportunity must be understood as an expression of unwillingness to approve it.
7. ID.; ID.; REVOCATION. — The revocation of an appointment, if feasible, should
be communicated to the appointee before the moment he quali ed. Any revocation
thereafter, is tantamount to removal.
8. ID.; ID.; WHERE APPOINTEE HAS QUALIFIED. — Once an appointee has
quali ed, he acquires a legal, not merely equitable right, which cannot be taken away
from him either by revocation of the appointment or by removal except for cause and
with previous notice and hearing.
9. ID.; ID.; RECESS DEFINED. — The term "recess" appearing in Section 10 (4) of
Article VII of the Constitution should be construed to mean "while Congress is not in
session" and this is con rmed by the practice consistently observed in the Philippines
for time immemorial.
10. ID.; APPOINTMENT; ASPECTS. — Appointments made by the President have
two (2) aspects, namely, the legal and the political. The rst refers to his authority to
make the appointments. The second deals with the wisdom in the exercise of such
activity, as well as with its propriety, whether a given vacancy or number of vacancies
should be lled, or who among several quali ed persons shall be chosen, or whether a
given appointment or number of appointments will favor the political party to whom the
power of appointment belongs and will injure the interest of a rival political party and to
what extent, are, essentially and typically political matters.
11. ID.; ID.; WHEN A POLITICAL QUESTION ARISES. — The question of whether
certain appointments should be sanctioned or turned down by reason of the improper,
immoral or malevolent motives with which said matters were allegedly handled is
clearly political and as such its determination belongs not to the courts of justice but to
the political organ established to check possible abuses in the exercise of the
appointing power - the Commission on Appointments.
12. ID.; SEPARATION OF POWERS; EXECUTIVE DEPARTMENT. — The principle of
separation of powers forbids inquiry into the motives of the Executive department in
making the appointments.
BARRERA. J., dissenting:
1. POLITICAL LAW; APPOINTMENTS; RECESS DEFINED; DISTINGUISHED WITH
ADJOURNMENT. — Recess means the period after the nal adjournment of Congress
for the session and before the next session begins while an adjournment during a
session of Congress means a merely temporary suspension of business from day to
day, or for such brief periods of time as are agreed upon by the joint action of the two
houses.
2. ID.; CONSTITUTION; INTERPRETATION OF TERM RECESS. — Paragraph 4,
Section 10 of Article VII of the Constitution speaks of "recess" without making any
distinction between the sessions of one Congress and the sessions of another. When
the law makes no distinction, no distinction should be made, especially and defeat the
evident purpose of the framers of the Constitution.
3. ID.; COMMISSION ON APPOINTMENTS; CONTINUING BODY. — The
Commission on Appointments as a constitutional body continues to exist but only its
membership charges periodically. It is not a creature of the Congress.
4. ID.; AD-INTERIM APPOINTMENT; DOES NOT LAPSE WITH END OF TERM OF
OFFICE OF CONGRESSMEN IN COMMISSION ON APPOINTMENTS. — An ad-interim
appointment does not automatically lapse with the ending of the term of o ce of the
twelve Congressmen composing one-half of the membership of the Commission on
Appointments. The Commission is a continuing body.
5. ID.; ID.; CAN NOT BE REVOKED ONCE APPOINTEE HAS QUALIFIED. — An ad-
interim appointment can not be recalled or withdrawn after the appointee has quali ed
for the position to which he was appointed.
6. ID.; JUDICIARY; NOT REPOSITORY OF ALL REMEDIES. — The judiciary is not the
repository of remedies for all political or social evils. It has no power to revise even
arbitrary or unfair action of the other departments taken in pursuance of the power
committed exclusively to those departments by the Constitution. There is still the
ultimate remedy by the people in the exercise of their sovereign right which is the
source of all authority.
7. ID.; ID.; ROLE OF COURTS. — The role of courts in our scheme of government is
to interpret the law and render justice under it. This simply means that whatever may be
the personal feelings as to the propriety, morality, or wisdom of any o cial act or
actuation of a public o cer or any agency of the government within their respective
competence brought to the attention of the Court for adjudication, they should not be
permitted to prevail over clear legal considerations, for ours is a regime under the Rule
of Law.
RESOLUTION
BENGZON , C.J : p
Without prejudice to the subsequent promulgation of a more extended opinion,

the Court adopted today, the following resolutions:
On December 29, 1961, then President Carlos P. Garcia appointed Dominador R.
Aytona as ad interim Governor of the Central Bank. On the same day, the latter took the
corresponding oath.
On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed
o ce; and on December 31, 1961, he issued Administrative Order No. 2 recalling,
withdrawing, and cancelling all ad interim appointments made by President Garcia after
December 13, 1961 (date when he, Macapagal, had been proclaimed elected by the
Congress). On January 1, 1962, President Macapagal appointed Andres V. Castillo as
ad interim Governor of the Central Bank, and the latter qualified immediately.
On January 2, 1962, both appointed exercised the powers of their o ce,
although Castillo informed Aytona of his title thereto; and some unpleasantness
developed in the premises of the Central Bank. However, the next day and thereafter,
Aytona was definitely prevented from holding office in Central Bank.
So, he instituted this proceeding which is practically, a quo warranto, challenging
Castillo's right to exercise the powers of Governor of the Central Bank. Aytona claims
he was validly appointed, had quali ed for the post, and therefore, the subsequent
appointment and quali cation of Castillo was void, because the position was then
occupied by him. Castillo replies that the appointment of Aytona had been revoked by
Administrative Order No. 2 of Macapagal; and so, the real issue is whether the new
President had power to issue the order of cancellation of the ad interim appointments
made by the past President, even after the appointees had already qualified.
The record shows that President Garcia sent to the Commission on
Appointments — which was not then in session — a communication dated December
29, 1961, submitting "for con rmation" ad interim appointments of assistant director
of lands, councilors, mayors, members of the provincial boards, scals, justices of the
peace, o cers of the army, etc.; and the name of Dominador R. Aytona as Governor of
the Central Bank occupies number 45, between a justice of the peace and a colonel of
the Armed Forces.
Another communication of President Garcia bearing the same date, submitted a
list of ad interim appointments of Foreign Affairs o cers, judges, scals, chiefs of
police, justices of the peace, mayors, councilors, etc. number 63 of which was that of
Dominador R. Aytona for Governor of the Philippines in the Boards of International
Monetary Fund, International Bank for Reconstruction and Development, etc.
A third communication likewise dated December 29, 1961, addressed to the
Commission on Appointments submitted for con rmation 124 names of persons
appointed as judges of rst instance, members of provincial boards, and boards of
government corporation, scals, justices of the peace, even one associate justice of
this Court occupying position No. 8 and two associate justices of the Court of Appeals
(9 and 10) between an assistant of the Solicitor-General's O ce, and the chairman of
the board of tax appeals of Pasay City, who in turn are followed by judges of rst
instance, and inserted between the latter is the name of another associate justice of the
Court of Appeals.
There were other appointments thus submitted by President Garcia on that date,
December 29, 1961. All in all, about three hundred fty (350) "midnight" of "last-minute"
appointments.
In revoking the appointments, President Macapagal is said to have acted for
these and other reasons: (1) the outgoing President should have refrained from ling
vacancies to give the new President opportunity to consider names in the light of his
new policies, which were approved by the electorate in the late elections; (2) these
scandalously hurried appointments in mass do not fall within the intent and spirit of the
constitutional provision authorizing the issuance of ad interim appointments; (3) the
appointments were irregular, immoral and unjust, because they were issued only upon
the condition that the appointee would immediately qualify obviously to prevent a recall
or revocation by the incoming President, with the result that those deserving of
promotion or appointment who preferred to be named by the new President declined
and were by-passed; and (4) the abnormal conditions surrounding the appointment and
quali cations evinced a desire on the part of the outgoing President merely subvert the
policies of the incoming administration.
It is admitted that many of the persons mentioned in the communication to the
Commission on Appointments dated December 29, 1961, did not qualify. There is
evidence that in the night of December 29, there was a scramble in Malacañang of
candidates for positions trying to get their written appointments or having such
appointments changed to more convenient places, after some last-minute bargaining.
There was unusual hurry in the issuance of the appointments — which were not coursed
through the Department Heads — and in the confusion, a woman appointed judge was
designated "Mr." and a man was designated "Madam." One appointee who got his
appointment and was required to qualify, resorted to the rush of asking permission to
swear before a relative official, and then never qualified.
We are informed, it is Malacañang's practice — which we nd to be logical — to
submit ad interim appointments only when the Commission on Appointments is in
session. One good reason for the practice is that only those who have accepted the
appointment and the quali ed are submitted for con rmation. Nevertheless, this time,
Malacañang submitted its appointments on the same day they were issued; and the
Commission was not then in session; obviously because it foresaw the possibility that
the incoming President would refuse to submit later the appointees of his predecessor.
As a result, as already adverted to, some persons whose names were submitted for
confirmation had not qualified nor accepted their appointments.
Because of the haste and irregularities, some judges of rst instance quali ed
for districts wherein no vacancies existed, because the incumbents had not quali ed
for other districts to which they had been supposedly transferred or promoted.
Referring speci cally to judges who had not quali ed, the course of conduct
adopted by Former Chief Justice Moran is cited. Being ambassador in Spain and
desiring to return to his Court even as associate justice, Moran was tendered an ad
interim appointment thereto by President Quirino, after the latter had lost the election
to President Magsaysay, and before leaving the Presidency. Said Ambassador declined
to qualify being of the opinion that the matter should be left to the incoming newly-
elected President.
Of course, nobody will assert that President Garcia ceased to be such earlier
than at noon at December 30, 1961. But it is common sense to believe that after the
proclamation of the election of President Macapagal, his was no more than a "care-
taker" administration. He was duty bound to prepare of the orderly transfer of authority
to the incoming President, and he should not do acts which he ought to know, would
embarrass or obstruct the policies of his successor. The time for debate had passed;
the electorate had spoken. It was not for him to use his powers as incumbent President
to continue the political warfare that had ended or to avail himself of presidential
prerogatives to serve partisan purposes. The ling up of vacancies in important
positions, if few, and so spaced as to afford some assurance of deliberate action and
careful consideration of the need for the appointment and the appointee's
quali cations may undoubtedly be permitted. But the issuance of 350 appointments in
one night and the planned induction of almost all of them a few hours before the
inauguration of the new President may, with some reason, be regarded by the latter as
an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan
effort to ll all vacant positions 1 irrespective of tness and other conditions, an
thereby to deprive the new administration of an opportunity to make the corresponding
appointments.
Normally, when the President makes appointments with the consent of the
Commission on Appointments, he has the bene t of their advice. When he makes ad
interim appointments, he exercises a special prerogative and is bound to be prudent to
insure approval of his selection either by previous consultation with the members of the
Commission or by thereafter explaining to them the reason for such selection. Where,
however, as in this case, the Commission on Appointments that will consider the
appointees is different from that existing at the time of the appointment 2 and where
the names are to be submitted by his successor, who may not wholly approve of the
selections, the President should be doubly careful in extending such appointments.
Now, it is hard to believe that in signing 350 appointments in one night, President
Garcia exercised such "double care" which was required and expected of him; and
therefore, there seems to be force to the contention that these appointments fall
beyond the intent and spirit of the constitutional provision granting to the Executive
authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of powers,
this Court resolves that it must decline to disregard the Presidential Administrative
Order No. 2, cancelling such "midnight" or "last-minute" appointments.
Of course, the Court is aware of many precedents to the effect that once an
appointment has been issued, it cannot be reconsidered, specially where the appointee
has quali ed. But none of them refer to mass ad interim appointments (three hundred
and fty), issued in the last hours of an outgoing Chief Executive, in a setting similar to
that outlined herein. On the other hand, the authorities admit of exceptional
circumstances justify revocation 3 and if any circumstances justify revocation, those
described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for denying the power
to revoke after the appointee has quali ed is the latter's equitable rights. Yet it is
doubtful if such equity might be successfully set up in the present situation,
considering the rush conditional appointments, hurried maneuvers and other
happenings detracting from that degree of good faith, morality and propriety which
form the basic foundation of claims to equitable relief. The appointees, it might be
argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline,
whatever the resultant consequences to the dignity and e ciency of the public service.
Needless to say, there are instances of the public service. Needless to say, there are
instances wherein not only strict legality, but also fairness, justice and righteousness
should be taken into account.
WHEREFORE, the Court exercising its judgment and discretion in the matter,
hereby dismiss the action, without costs.
Labrador, Reyes, J.B.L., Paredes and De Leon, JJ., concur.
Separate Opinions
PADILLA , J., concurring:
Once more this Court has to pass upon and determine a controversy that calls
for an interpretation of the provisions of the Constitution. The facts that gave rise to
this petition need not be re-stated as they are set forth in opinion rendered for the
Court. The question is whether the appointment of a person to a public o ce by a
President whose term of o ce was about to expire or cease is lawful or does not
contravene the Constitution; or, if lawful after appointee has taken his oath, until when
would such appointment be valid and effective. The constitutional point involved seems
to have been overlooked by the framers of the Constitution. It would seem that the
framers, well-meaning person that they were, never foresaw an eventuality such as the
once confronting the Republic. The framers never thought and anticipated that a citizen
elevated by the people to such an exalted o ce as the President of the Republic, would
perform an act which, though not expressly prohibited by the Constitution and the law,
ought not to be done, since a sense of propriety would be enough to stop him from
performing it.
The petitioner invokes section 10, paragraph 4, article VII, of the Constitution
which provides that —
The President shall have the power to make appointments during the
recess of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of
the Congress.
Under these constitutional provisions there seems to be no doubt that the

President may make the appointment, and if approved by the Commission on
Appointments, it would unquestionably be lawful, valid and effective, but if disapproved
or not acted upon by the Commission on Appointments then the appointment becomes
ineffectual and the appointee ceases and can no longer perform the duties of the o ce
to which he had been appointed.
It is urged that the petitioner's appointment having been made by the President
during the recess of the Congress and he having taken his oath, the appointment is
lawful, valid and effective until disapproval by the Commission on Appointments or until
the next adjournment of the Congress should the Commission on Appointments fail to
act on it.
Ad interim appointments that the President may make during the recess of the
Congress are those made during a period of time from the adjournment of the
Congress to the opening session, regular or special, of the same Congress. In other
words, if the President had convened in a special session of the fourth Congress whose
term was to expire on the 30th of December 1961 and during such session the ad
interim appointments had been con rmed by the Commission on Appointments there
would be little doubt that the appointments would be lawful and valid.
The government established by the Constitution is one of checks and balances
to preclude and prevent arrogation of powers by officers elected or appointed under it.
Under the provisions of the Constitution "The term of o ce of Senators shall six
years and shall begin on the thirtieth day of December next following their election." 1
And "The term of the Members of the House of Representatives shall be four years and
shall begin on the thirtieth day of December next following their election." 2 Under
section 10, paragraph 4, article VII, of the Constitution, above quoted, the President
may make appointments during the recess of the Congress, "but such appointments
during the recess of the Congress, "but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress."
The term "recess", in its broadest sense, means and refers to the intervening
period between adjournment of a regular session of one hundred days exclusive of
Sundays, or of a Special session which cannot continue longer than thirty days, and the
convening thereof in regular session once every year on the fourth Monday of January
or in special to consider general legislation or only such objects as he (the President)
may designate. 3 And such intervening period refers to the same Congress that had
adjourned and was to be convened. Such intervening period cannot refer to two
different Congresses, one that has adjourned and one newly chosen or elected to meet
in regular session as provided for by the Constitution, or in special session by the call of
the President.
"The term of the President . . . shall end at noon on the thirtieth day of December
following the expiration of four years after (his) election and the term of (his) successor
shall begin from such time." 4
If the ad interim appointments made by the President of during the recess of the
Congress are effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress — a limitation on the power of the President
— there is a cogent an strong reason for holding to be the intent of the framers of the
Constitution that such appointments made by him ceased to be valid and effective
after the term of the Congress existing at the time of the making of such appointments
has ended or expired. The end or expiration of the term of the Congress existing at the
time of the making of the ad interim appointments by the President is a stronger cause
or reason for the lapse or ineffectuality of such appointments than "the next
adjournment of the Congress." Since that Congress no longer exists and hence can no
longer convene and then "adjourn." The effectivity and validity of the appointment of the
petitioner as Governor of the Central Bank ceased, lapsed and expired on the thirtieth of
December 1961. He is no longer entitled to hold the o ce to which he had been
appointed. My vote, therefore, is for the denial of the petition.
Dizon, J., concurs.
BAUTISTA ANGELO , J., concurring:
In addition to the reasons stated in the resolution adopted by this Court on

January 19, 1962, I wish to express the following views:
1. The "midnight appointments" made by President Garcia were extended by him
under Section 10, Paragraph 4, Article VII of the Constitution which provides: "The
President shall have the power to made appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournments can only be made during
the recess of Congress because they are ad interim appointments.
The term "recess" has a de nite legal meaning. It means the interval between a
session of Congress that has adjourned and another of the same Congress. It does not
refer to the interval between the session of one Congress and that of another. In that
case the interval is no referred to as a "recess" but an adjournment sine die. Thus, in the
case of Tipton v. Parker, 71 Ark. 194, the court said: "The 'recess' here referred to by
Judge Cooley means the intermission between sittings of the same body at its regular
or adjourned session, and not to the interval between the nal adjournment of one body
and the convening of another at the next regular session. When applied to a legislative
body, it means a temporary dismissal, and not an adjournment sine die." Since the
appointments in question were made after the Fourth Congress has adjourned sine die
and ceased to function on December 30, 1961, they cannot partake of the nature of ad
interim appointments within the meaning of the Constitution.
2. The Commission on Appointments under our constitutional set-up is not
continuing body but one that co-exists with the Congress that has created it. This is so
because said Constitution is a creation of the Senate and of the House of
Representatives. While the Senate is a continuing body, the House ceases at the end of
its fourth year. It cannot therefore be continuing it being a creation of a body half of
which is alive and the other half has ceased to exist. This theory can also be gleaned
from the proceedings of the constitutional convention.
Thus, the preliminary draft of the Philippine Constitution provides for a
permanent Commission and for the holding of sessions of the Commission even during
the recess of Congress. After mature deliberation the proposal was defeated and a
substitute was adopted which is now embodied in Article VI, Section 12, of our
Constitution. As a matter of fact, as nally adopted, the Commission on Appointments
has to be organized upon the convening of a new Congress after the election of the
Speaker of the House of Representatives or of the President of the Senate, as the case
may be, as provided for in Section 13, Article VI of the Constitution (Article VII,
Preliminary Draft of the Constitution, Vol. 2, Aruego: The Framing of the Constitution,
pp. 982, 987).
An ad interim appointments, to be complete, needs to be submitted to the
Commission on Appointments once the same is constituted. This re ected in the
Constitution when it provides that "such appointments shall be effective only until
disapproval by the Commission on Appointments once the same is constituted. This is
re ected in the Constitution when it provides that "such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress" (Section 10, Paragraph 4, Article VII). This means that it
must be submitted to the commission on Appointments of the Congress that has
created it. It cannot be submitted to the Commission on Appointments of a different
Congress. Since the appointments in question were submitted to the Commission on
Appointments which ceased to function on December 30, 1961, they lapsed upon the
cessation of said Commission. Consequently, they can be recalled by the new Chief
Executive.
3. An ad interim appointment is not complete until the appointee takes the oath
of o ce and actually takes possession of the position or enters upon the discharge of
its duties. The mere taking of the oath of o ce without actual assumption of o ce is
not su cient to constitute the appointee the actual occupant thereof who may not be
removed therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d. 584). The
case of Summers v. Ozaeta, 81 Phil., 754, cannot be cited as a precedent as to when an
ad interim appointment as judge at large. After assuming the o ce and discharging his
duties, his appointment was not con rmed. He claimed that he could still revert to his
former position as cadastral judge. True, this Court made a statement therein that an
ad interim appointment becomes permanent after taking the oath of o ce, but such
statement is merely an obiter dictum because the case could have been decided on the
doctrine that, having accepted an incompatible o ce, petitioner was deemed to have
abandoned the position of cadastral judge.
In relying on certain cases for the proposition that once an appointee has taken
the oath of o ce his appointment becomes irrevocable petitioner fails to consider that
in said cases there had either been an actual discharge of duty and actual physical
possession or assumption of o ce following the oath-taking as to constitute the
appointee the occupant of the position from which he cannot be removed without
cause. Even the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69, cannot
be invoked as a precedent, for there the appointees were merely nominated and their
nominations con rmed by the Commission on Appointments even if they have later
taken their oath of o ce. Certainly, they can no longer be deprived of their
appointments for they the executive would be acting in disregard of the con rming
body which is a coordinate and independent body not subject to his control.
Since the appointments in question were made not in the light of the views herein
expressed, I am of the opinion that they did not ripen into valid and permanent
appointments and as such were properly recalled by the new Chief Executive.
CONCEPCION , J., concurring in part and dissenting in part:
It is well settled that the granting of writs of prohibition and mandamus is

ordinarily within the sound discretion of the courts, to be exercised on equitable
principles, and that said writs should be issued when the right to the relief is clear (55
C.J.S. 25, 29, 73 C.J.S. 18). Insofar as the majority resolution relied upon discretion and
the equities of the case in denying said writs, I concur, therefore, in the aforementioned
resolution.
However, I cannot see my way clear to subscribing to the observations therein
made representing the motives allegedly underlying petitioner's appointment and that
of may others who are not parties in this case, and justifying the revocation of such
appointments. My reasons, among others, are:
1. Save where the incumbent has a temporary appointment or its removable at
the will of the appointing power an appointment once complete, by the performance of
all acts required by law of the appointing power, is irrevocable.
"An appointment to o ce may be revoked at any time before the
appointment becomes nal and complete, but not thereafter unless the appointee
is removable at the will of the appointing power. For the purpose of this rule, an
appointment to o ce is complete when the last act required of the person or
body vested with the appointing power had been performed. Where by
constitutional, statutory, or other legal provision it is required that certain steps be
taken to make an effective appointment, it has been held that the appointment
becomes complete beyond the possibility of recall when the last of the prescribed
steps is taken, and that, where no method of appointment is provided, an
appointment does not become effective and beyond recall until the appointing
officer by some act or word evinces a final intent to vest the appointee with title to
the offices." (67 C.J.S., pp. 161-162)
"After the act of appointment is complete, the appointing authority may not
revoke its former appointment and make another. And Appointment to o ce is
complete when the last act required of the person or body vested with the
appointing power has been performed." (56 C.J.S., pp. 954)
"In all jurisdictions where appointment to o ce is regarded as an executive
function, as here, an appointment to o ce once made is incapable of revocation
or cancellation by the appointing executive in the absence of a statutory or
constitutional power of removal. Barrett v. Duff, 114 Kan. 220; 217 P. 918; People
v. Mizner, 7 Cal. 519, State v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas.
1006; Draper v. State, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D, page 305,
Annotation." (McChesney v. Sampson, 23 S.W. 2d., 584)
May an appointment be revoked by reason of error or fraud? This question was

taken up in Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Sco eld vs. Starr (63 A
512). The rst involved a City Charter providing that its common council shall, in joint
convention, Coogan obtained a majority of the votes cast and of the convention. Upon
announcement of this result, a member of the convention offered a resolution declaring
Coogan elected, but the resolution was defeated. Then, two resolutions were offered
and approved: one declaring that the ballots taken were null and of no effect by reasons
of errors in the same and another declaring Barbour elected prosecuting attorney. The
issue was who had been appointed thereto. The court held that it was Coogan, he
having obtained a clear majority and there having been no error or fraud in the voting,
although it did not deny the power of the convention to correct errors and to nullify the
effects of fraud in the voting by invalidating the same and calling another election, had
the proceedings been tainted with such error or fraud.
The second case referred to a similar provision in a city charter, to the effect that
appointments by the common council shall be by ballot and that the person receiving a
plurality of ballots shall be elected. The rst balloting taken for the election of the city
surveyor of Brigeport resulted in 25 ballots being cast. It was announced that there was
one ballots more than members voting, and that there were 13 ballots for Sco eld, 11
for Starr and one blank ballot. Sco eld maintained that this result amounted to his
appointment precluding the council from taking a new ballot but such pretense was
rejected. Inasmuch as the number of ballots case exceeded the number of persons
voting, the council was justi ed in believing that the proceeding was not free from
suspicion of fraud or mistake in the voting and, accordingly in taking another vote.
In both cases, the fraud or mistake alluded to referred to the manner of voting or
of counting the ballots cast, not to the intent of the voters in choosing a particular
appointee.
2. An ad interim appointment, made during a recess of Congress, is complete
and irrevocable upon the performance of the last act required by law from the
appointing power, even without previous notice to the appointee, or acceptance by him,
or without subsequent action of the legislative organ that may terminate its effectivity.
"In the case of appointment made by a single executive such as a
governor, mayor, etc., it is undisputed that the appointment once made is
irrevocable.
xxx xxx xxx
"Where an appointment subject to con rmation by the senate is made by a

governor during a recess of the senate, . . . the question arises as to whether such
an appointment may be reconsidered and withdrawn by the governor before it is
acted upon by a Senate.
xxx xxx xxx

"In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. 918, where appointments
made by the governor during a recess of the legislature, which appointments
could not be con rmed by the senate as required by law until the next session of
that body, were revoked by the governor's successor, and other persons were
appointed to the o ces, such action by him being taken after the senate had
convened and had taken under advisement the con rmation of the persons rst
appointed to the o ces, but before the senate had taken any de nite action with
regard to such con rmation, and the senate con rmed the rst appointee, but,
despite this act of the senate, commissions were issued by the governor to the
second appointee, it was held, in reliance upon the terms of the statutes which
provided that the governor should àppoint' persons to such o ces with the
advice and consent of the senate, as distinguished from the provision of the
Constitution of the United States governing appointments by the President, which
provides that the President shall `nominate' and, by and with the advice and
consent of the senate, shall àppoint' persons to o ce, that the act of the
governor in making the rst appointments was nal and exhausted the power of
the governor's o ce in that regard unless and until the appointments were
rejected by the senate, and that, therefore, the persons appointed by the rst
governor were entitled to the o ce. In the words of the court, `The power of the
governor having been exercised, he had no further control over the respective
o ces unless and until the appointees had been rejected by the senate.' In
reaching this result, the court emphasized the difference between a nomination
and an appointment, holding that, where the statute relating to appointments by
the governor with the consent of the senate provides that the governor shall
appoint persons to the o ce with the consent of the senate, rather than merely
nominate persons for consideration by the senate, the appointment is nal and
conclusive without confirmation. . . . .
"Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23 S.W. (2d.) 584,
the act of a governor in making a recess appointment was held to be not merely a
nomination subject to revocation by the governor at any time prior to action
thereon by the senate, but a nal and irrevocable appointment subject only to
rejection by the senate. In support of this result, it was aid: Ìt is urged that
appointment to the o ce consists of two separate acts, one by the governor and
one by the senate, and until both have acted there is no appointment such as to
bring the incumbent within the protection of the law. Even so, the two powers do
not act concurrently, but consecutively, and action once taken and completed by
the executive is not subject to reconsideration or recall. . . . The fact that the title
to the o ce, and the tenure of the o cer, are subject to the action of the senate,
does not render incomplete the act of the chief executive in making the
appointment. The appointment alone confers upon the appointee for the time
being the right to take and hold the o ce, and constitutes the last act respecting
the matter to be performed by the executive power.'
xxx xxx xxx
"In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding that an
appointment made by a governor to ll an o ce which had expired during a
recess of the legislature was not merely an appointment to ll a vacancy which
would expire at the end of the next session of the legislature, but was an
appointment for a full term, and that the act of the governor during a subsequent
session of the legislature, in appointing another to the o ce and asking his
con rmation by the legislature, was unauthorized and void, it was said that, the
power of the executive having been once exercised, he has no further control over
the o ce until the appointee has been rejected by the senate ." (89 ALR, pp. 138,
139, 140.)
3. The irrevocability of the ad interim appointment adverted to above becomes

more apparent when we consider that the House, Commission on Appointments or
other agency of Congress charged with the function of terminating the effectivity of
such appointment, may act thereon, by approving or disapproving the same, even
though the Executive had not submitted or forwarded it to said House, Commission or
agency of Congress, and even though either the outgoing or the incoming Executive
shall have submitted for con rmation the name of a subsequent appointee in lieu of the
first one.
This was the situation met in People ex rel. Emerson vs. Shawver (30 Wyo. 366,
222 Pac. 11). The facts therein were: On July 1, 1919, Governor Carey of Wyoming
appointed Emerson as state engineer, to ll the vacancy caused by the resignation of
its incumbent. Upon the expiration of the latter's term, Governor Carey reappointed
Emerson for a full term of six (6) years, from and after April 1, 1921. This fact
appointment was con rmed by the state legislature at its next session in 1923. Prior
thereto, however, Governor Carey's term had expired and his successor had appointed
Shawver as state engineer. Thereupon Shawver ousted Emerson from such o ce. It
was held that Emerson had a better right thereto; that his appointment in 1921 was a
completed appointment, requiring no action by the Senate to entitle him to hold said
o ce; that a recess appointment once made by "the executive is not subject to
reconsideration or recall, "even though not as yet con rmed by the Senate, inasmuch
as," the appointment alone confers upon the appointee for the time being the right to
take and hold the o ce, and constitutes the last act respecting the matter to be
performed by the executive power"; and that, although the term of Governor Carey had
expired and neither he nor his successor had forwarded Emerson's appointment to the
Senate for con rmation or requested the Senate to act upon said appointment, the
same had been validly confirmed by said body, for
"The provision as to the o ce here in question found in the constitution
does not say that the appointment made by the Governor shall be con rmed by
the Senate when requested by the former, or upon a communication by him
submitting the matter to the Senate. And we perceive no substantial reason for
adding by construction any such restriction upon the Senate's right to act."
(People v. Shawver, 222 P. 11; see, also, Commonwealth v. Waller, 145 Pa. 235, 23
Atl. 382, State v. Williams, 20 S.C. 13; Richardson v. Henderson, 4 Wyo. 535, 35
Pac. 517, and other cases cited in the Shawver case.)
4. The foregoing goes to show, also, that the question whether the Commission
on Appointments is or is not a continuing body can not affect the determination of this
case. Besides, the constitutional provision making an ad interim appointment, if not
disapproved by the Commission on Appointments, effective only until the next
adjournment of Congress, clearly indicates that such Commission must have an
opportunity to approve or disapprove the appointment and that its inaction, despite
such opportunity, at the session of Congress next following the making of the
appointment — during which it could have met, and, probably, did meet — must be
understood as an expression of unwillingness to stamp its approval upon the act of the
executive. No such opportunity exists when the outgoing Congress has not held any
session, regular or special after the making of the appointment and before the
expiration of the term of said Congress, and the new Congress has not, as yet,
organized itself or even met.
5. The American rule concerning irrevocability of appointments is bolstered up in
the Philippines by Section 4 of Article XII of the Constitution, which provides that - "no
o cer of employee in the Civil Service shall be removed except for cause as provided
by law." (Article VII, Section 4.)
In fact, in his concurring opinion in Eraña vs. Vergel de Dios (85 Phil. 17), our
distinguished Chief Justice pointed out that the revocation of an appointment, if
feasible, "should be communicated to the appointee before the moment he quali ed,"
and that "any revocation thereafter, is tantamount to removal and must be judged
according to the rules applicable to the removal" (emphasis ours). In the present case,
the revocation of petitioner's appointment was not communicated to him before he
quali ed by taking his oath of o ce. It is not even claimed that any of the statutory
causes for removal of petitioner herein exists, or that the procedure prescribed for such
removal has been complied with.
6. Once an appointee has quali ed, he acquires a legal, not merely equitable right,
which is protected not only by statute, but, also by the Constitution, for it cannot be
taken away from him, either by revocation of the appointment or by removal, except for
cause, and with previous notice and hearing, consistently with said Section 4 of Article
XII of our fundamental law, and with the constitutional requirement of due process
(Segovia vs. Noel, 47 Phil., 547; Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See also, People
ex rel Ryan v. Green, 58 N. v. 295; People vs. Gardner, 59 Barb. 198; II Lewis Sutherland
Statutory Construction, pp. 1161 and 1162, Mechem on Public O cers, Sec. 389; 22
R.C.L. 377-378; 25 Am. Dec. 690-691, 703).
7. The case of Tipton vs. Parker (74 S.W., 298) has been cited in support of the
theory that Congress of the Philippines was not in "recess" on December 29, 1961, and
that, accordingly, ad interim appointments could not validly be made in such date. The
question involved in said case was whether a committee of the Senate of Arkansas
could be authorized by the same to function after the adjournment sine die of the
regular session of the state General Assembly. The State Supreme Court considered as
decisive authority the view expressed by Judge Cooley, to the effect that a legislative
committee "has no authority to sit during a recess of a House which appointed him,
without its permission to that effect". The issue thus hinged on the meaning of the term
"recess" as used by Judge Cooley. Resolving this question, said court held that the
recess referred to by Judge Cooley was "only the intermission between the sittings of
the same body at its regular or adjourned session and not to the interval between the
nal adjournment of one body and the convening of another at the next regular
session".
In this connection, it should be noted that, as an agency of the Senate, the
committee involved in said case could not operate for its principal beyond the latter's
term. Moreover, under the Constitution of Arkansas, the regular biennial session of the
General Assembly could not exceed 60 days, unless by a vote of 2/3 of the members of
each of the two Houses of the legislative. Inasmuch as the Senate could not, without
the concurrence of the House, directly extend the period of its regular session, neither
could it, without such concurrence, indirectly extend said period, by granting its
aforementioned committee the authority to function beyond said period. As stated by
the Court "the committee, being the mere agency of the body which appointed it, dies
when the body itself dies, unless it is continued by law", which the Senate may not enact
without the concurrence of the House.
The decision in said case did not seek to de ne the meaning of the term "recess"
as used in any constitution or statute. It did not even refer to the authority to make
appointments during "recess". It has absolutely no bearing, therefore, on the issue
before us.
Upon the other hand, Dr. Jose M. Aruego, a prominent member of the
constitutional convention, says, in his work on "The Framing of the Philippine
Constitution" (Vol. I, pp. 434-435), that the draft of the provision on ad interim
appointments by the President, as submitted by the corresponding committee,
followed the principles of the Jones Law and that the recommendation of the
committee was readily approved on the oor of the convention, although the
committee on style gave said provision its present phraseology. Pursuant to the Jones
Law, "appointments made while the Senate is not in session shall be effective either
until disapproval or until the next adjournment of the Senate". Hence, the term "recess"
appearing in Section 10(4) of Article VII of our Constitution should be construed to
mean "while Congress is not in session" and this is con rmed by the practice
consistently observed in the Philippines for time immemorial, as well as the as interim
appointment extended by President Macapagal to respondent Castillo.
8. The case of McChesney vs. Sampson (23 S.W. 2d. 584) has, also, been invoked
in support of the proposition that "an ad interim appointment is not complete until the
appointee takes the oath of o ce and actually takes possession of the position or
enters upon the discharge of its duties" and that, before such actual taking of
possession, though after the oath taking, the appointee may be removed without cause.
We have not found in said case anything justifying such claim. The issue in said
case was whether a state governor could recall an uncon rmed appointment of
McChesney to the state text-book commission when there had been no session of the
Senate subsequent to the appointment, and such issue was decided in the negative.
Although, in addition to accepting the appointment, McChesney had quali ed and
exercised the function of the o ce, the decision of the Court clearly indicates that it
was not necessary for him to discharge the duties of the o ce or even to take the oath
of o ce, in order to render his appointment irrevocable. The Court explicitly declared
that the appointment, once "completed by the executive is not subject to
reconsideration or recall;" That the appointment "is complete when the appointing
authority has performed the acts incumbent upon him to accomplish the purpose;" and
that in the case of recess appointments, like that of McChesney," the appointment
alone confers upon the appointee for the time being the right to take and hold the office
and constitutes the last act respecting the matter to be performed by the executive
power" completing the appointment and rendering the same irrevocable.
In short, the McChesney case is authority for the petitioner herein.
9. Most, if not all appointments made by the President have two (2) aspects,
namely, the legal and the political. The rst refers to his authority to make the
appointments. The second deals with the wisdom in the exercise of such authority, as
well as with its propriety. Whether a given vacancy or number of vacancies should be
lled, or who among several quali ed person shall be chosen, or whether a given
appointment or number of appointments will favor the political party to whom the
power of appointment belongs and will injure the interest of a rival political party and to
what extent, are, to my mind, essentially and typically political matters. Hence, I believe
that the question whether certain appointments should be sanctioned or turned down
by reason of the improper, immoral or malevolent motives with which said matters
were allegedly handled is, likewise, clearly political, and, as such, its determination
belongs, not to the courts of justice (Vera vs. Avelino, 77 Phil., 192, 205; 16 C.J.S. 689-
690; Willoughby on the Constitution, Vol. III 1326-1327), but to political organ
established precisely to check possible abuses in the exercise of the appointing power
— the Commission on Appointments.
Indeed, I can hardly conceive of any question more patently and characteristically
political than this one, or more appropriate for determination of said body. Neither the
possible or probable control thereof by members of the Nacionalista Party nor the
number of o ces or appointments involved can affect the nature of the issue. Surely,
its political character is the same whichever political party may have the largest number
of votes in the Commission on Appointments. The big number of said appointments
merely tend to make more manifest the political complexion thereof and its non-
justiciable nature.
10. In Osmeña vs. Pendatum (L-17144, October 28, 1960), we refused to disturb
the action of the House of Representatives in suspending a member thereof — who had
made derogatory imputations against the President of the Philippines — upon the
ground that such imputations constituted a breach of the courtesy due to a coordinate
branch of the Government. Yet, in the present case, imputations similarly derogatory to
the same branch of the Government are, in effect, made in the majority resolution.
I cannot see how such imputations can be reconciled with the position taken by
this Court in the Osmeña case and in other cases (Barcelon vs. Baker, 5 Phil., 87;
Severino vs. Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612; Alejandrino
vs. Quezon, 46 Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L-4638,
May 8, 1951) in which it "fastidiously observed" the theory of separation of powers
(Osmeña vs. Pendatum, supra). Thus, in Santos vs. Yatco (55 Off. Gaz. 8641), in which a
department head was sought to be enjoined from electioneering, in view of the explicit
provisions of the Civil Service Act of 1959 (Republic Act No. 2260, section 29),
prohibiting all o cers and employees in the civil service, "whether in the competitive or
unclassi ed service," from engaging directly or indirectly in partisan political activities
or taking part in any election except to vote, we held that the issue therein raised was
one of "impropriety as distinguished from illegality," and that, as such, it "is not
justiciable by this Court." In Mabanag vs. Lopez Vito (78 Phil., 1), we refused to decide,
upon the same ground, whether speci ed numbers of votes constituted three-fourths
of all members of each House of Congress. In Vera vs. Avelino (77 Phil., 192), we not
only declared that "the judiciary is not the repository of remedies for all political or
social evils," but, also, quoted with approval the statements, made in Alejandrino vs.
Quezon (46 Phil., 81), to the effect that "the judicial department has no power to revise
even the most arbitrary and unfair action of the legislative department, or of either
House thereof, taken in pursuance of the power committed exclusively to that
department by the Constitution." (Emphasis ours.)
11. In the present case, we have completely reversed our stand on the principle
of separation of powers. We have inquired into the motives of the Executive
department in making the appointments in question, although it is well settled, under
the aforementioned principle, that:
"Generally courts cannot inquire into the motive, policy, wisdom, or
expediency of legislation.
The justice, wisdom, policy, necessity, or expediency of a law which is

within its powers are for the legislature, and are not open to inquiry by the courts,
except as an aid to proper interpretation." (16 C.J.S. 471-478)
If this is true as regards the legislative branch of the government, I can see no
valid reason, and none had been pointed out, why the same norm should not govern our
relations, with the executive department. However, we have not merely disregarded
such norm. We are, also, in an organ of a coordinate, co-equal branch of the
Government — from acting on the questioned appointments. What is more, we are
virtually assuming in advance that said body — which has not been organized as yet and
whose membership is still undetermined — will not act in harmony with the spirit of our
Constitution.
12. It is trite to say that certain moral and political aspects of the issue before us
cannot but produce a strong aversion towards the case of petitioner herein and the
hundreds of others appointed under the same conditions as he was. Although
members of the bench must always endeavor to minimize the in uence of emotional
factors tending to affect the objectivity essential to a fair and impartial appraisal of the
issues submitted for their determination, it is only natural — and, I venture to add,
fortunate (for, otherwise, how could they hope to do justice to their fellowmen?) — that
they should basically react as other members of the human family. This is probably the
reason why Justice Douglas of the Federal Supreme Court of the U.S., said, in Abel v.
U.S. (4 Lawyers Edition, 2d, 668, 688):
"Cases of notorious criminals — like cases of small, miserable ones — are
apt to make bad law. When guilt permeates a record, even judges sometimes
relax and let the police take shortcuts not sanctioned by constitutional
procedures. . . . . The harm in the given case may seem excusable. But the
practices generated by the precedent have far-reaching consequences that are
harmful and injurious beyond measurements."
Let us hope that no such consequences will ow from the precedent established
in this case.
BARRERA , J., dissenting:
The instant case started with a simple petition for prohibition and mandamus
with preliminary injunction instituted by petitioner Aytona who claims to have been duly
appointed as interim Governor of the Central Bank, against respondent Castillo who,
allegedly accompanied by his correspondent Colonel Gutierrez and a host of heavily
armed Philippine Constabulary Rangers, interfered with and prevented the petitioner in
the discharge of his duties and prerogatives as such Governor of the Central Bank.
During the hearing, however, and immediately thereafter, a great amount of extraneous
matter affecting person not parties to the proceedings has been introduced into the
case and a veritable avalanche of memoranda after memoranda and manifestations
after manifestations swelled the records and helped involve the issues. One among the
dozens who asked to be admitted as amici curiae, even presented an answer in behalf
of the people to support the side of the respondents. Unfortunately, in the confusion,
the case of the immediate parties became obscured by considerations of
circumstances and matters for the with which petitioner and respondents are not
responsible and are not directly connected.
In my opinion, the fundamental questions which this Court is called upon to
resolve in the present case are specifically:
(1) Is the ad-interim appointment of petitioner Aytona valid when
extended?
(2) If so, did it automatically lapse with the ending of the term of o ce of
the twelve Congressmen composing one-half of the membership of the
Commission on Appointments?
(3) May this appointment be legally recalled or withdrawn after Aytona has
qualified?
Before entering into the discussion of the "propriety, morality and wisdom" of the
appointment, it is necessary, I believe, that the foregoing legal propositions must rst
be cleared out.
I. The Validity of Aytona's Appointment:
Aytona's ad interim appointment is assailed on the theory that it was not made
during a "recess" of Congress as provided in paragraph 4, Section 10 of Article VII of
the Constitution. It is claimed for the respondents that the word "recess" means "the
intermission between sittings of the same body at its regular or adjourned session, and
not to the interval between the nal adjournment of one body and the convening of
another at the next regular session. When applied to a legislative body, it means a
temporary dismissal, and not an adjournment sine die." In support of this view, counsel
cites the case of Tipton v. Parker, 71 Ark. 193, from which the foregoing quotation was
taken.
An examination of this case, however, discloses that it did not refer to the power
of the President to make ad interim appointments. The pronouncement was made in
connection with the interpretation of Section 17, Article 5 of the Constitution of the
State of Arkansas. the case with reference to the legality of the expenses of a
committee of the State Senate authorized by the latter to made certain investigations
beyond the duration of the session of the General Assembly. The court, in declaring the
certificate without sanction of law, stated:
"The Senate has no power by resolution of its own to extend its session,
and neither did it have power to such separate resolution to continue its
committee, a mere agency of the body, beyond the term of the body itself which
created it."
in view of the provisions of the aforementioned Section 17, Article 5 of the state
Constitution prescribing "that the regular biennial session of the Legislature shall not
exceed 60 days, unless by 2/3 vote of the members elected to each house, and section
23 requiring a vote of the majority of each house to enact a law or pass a resolution
having the force and effect of a law". Apparently an opinion of Judge Cooley seemingly
to the contrary was cited to refute this view of the court, and so the decision went on to
say:
"Each house, says Judge Cooley, must also be allowed to proceed in its
own way in the collection of such information as may seem important to a proper
discharge of its functions; and whenever it is deemed desirable that witnesses
should be examined, the power and the authority to do so is very properly referred
to a committee, with any such powers short of nal legislative or judicial action
as may seem necessary or expedient in the particular case. Such a committee has
no authority to sit during a recess of the house which has appointed it, without its
permission to that effect. But the house is at liberty to confer such authority if it
sees fit."
It is in this connection and evidently in a desire to explain the opinion of Judge
Cooley that the court made the pronouncement relied upon by respondents, thus:
" . . . . The recess here referred to by Judge Cooley we think should be
construed to mean only the intermission between sittings of the same body at its
regular or adjourned session, and not to the interval between the nal
adjournment of one body and the convening of another at the next regular
session. When applied to a legislative body, it means a temporary dismissal, and
not an adjournment sine die."
The conclusion reached by the court can not be otherwise. The case refers to the
powers of one house of the state Legislature, with the concurrence of the other, to
confer authority upon its own committee to act beyond the duration of the session of
the General Assembly. Certainly, Judge Cooley's view that each house has power to
confer authority to its committee to act during a recess must be understood to exist
only during the life of the house creating the committee. It can not go beyond its own
existence, that is, beyond its adjournment sine die.
But this ruling is no argument that the Executive's power to make during such
adjournment sine die does not exist just because a house of the legislature lacks power
to authorize its committee to act during a defunct body to act beyond its life; the other
refers to power of another authority, the executive, to perform its functions after the
expiration of that other body. Non-existence of the first does not mean non-existence of
the other.
It is to be noted that the different counsel advocating the cause of the
respondents are not even agreed in the application of their interpretation of the word
"recess". Some of them argue that the interregnum which they contend is not recess,
comprises the entire period between the adjournment of the 4th Congress in May, 1961
and the opening of the 1st session of the 5th Congress on January 22, 1962, so that all
ad interim appointments extended during this period are null and void. Others claim
that such interregnum is that period between December 13, 1961, date of adjournment
of the last session of the 4th Congress, and January 22, 1962. It seems the President
Macapagal is of this same view because his administrative Order No. 2 speci cally
refers to all appointments made after December 13, 1961. Still others, at least one,
advanced the theory during the oral argument that the banned period is that between
the adjournment of the 4th Congress in May, and December 30, 1961, excluding
therefrom the period between this last date and January 22, 1962. Obviously, this
theory was advanced in an effort to lend validity to the appointments recently made by
President Macapagal, for if the entire period between May or December, 1961 to
January 22, 1962 is held not a recess, but an adjournment sine die, then all
appointments heretofore made by the present Chief Executive would suffer the same
defect as those extended by former President Garcia. This last argument is unavailing
because it, likewise, is untenable, tested upon the same authority cited by counsel, i.e.,
that the term "recess" means "the intermission between sittings of the same body."
Since the 5th Congress has not as yet even convened, the period between December 30
and January 22 can not be a recess of the 5th Congress because it, de nitely, is not an
intermission between sittings of the same body.
In the circumstances, it seems it is an over-statement to say that the term
"recess has a de nite legal meaning in the sense attributed to it in the Tipton vs. Parker
case. The confusion in the minds of the several counsels for the respondents as to the
application of the alleged meaning of the term, indicates a belabored effort on their
part to impute a meaning to satisfy their case. Upon the other hand, we nd in "Hinds
Precedents of the House of Representatives" (Vol. 5, pp. 852-853), a legislative
interpretation by the United States Senate made during the discussion of the term
"recess of the Senate" in connection with the President's 1 power to make
appointments, as follows:
"The word 'recess' is one of ordinary, not technical, signi cation, and it is
evidently used in the constitutional provision in its common and popular sense. It
means in Article II, above referred to, precisely what it means in Article III, in which
it is again used. conferring power upon the executive of a State to make
temporary appointment of a Senator, it says:
'And if vacancies happen, by resignation or otherwise, during the

recess of the legislature of any State, the executive thereof may make
temporary appointments until the next meeting of the legislature, which
shall then fill such vacancies.'
"It means just what was meant by it in the Article of Confederation, in

which is found in the following provision:
'The United States in Congress assembled shall have authority to

appoint a committee to sit in the recess of Congress, it be denominated a
committee of the States, and to consist of one delegate from each State.'
"It was evidently intended by the framers of the Constitution that it should
mean something real, not something imaginary' something actual, not something
ctitious. They used the word as the mass of mankind then understood it and
now understand it. It means, in our judgment, in this connection the period of time
when the Senate is not sitting in regular or extraordinary session as a branch of
the Congress, or in extraordinary session for the discharge of executive functions;
when its members owe no duty of attendance; when its Chamber is empty; when,
because of its absence, it cannot receive communications from the President or
participate as a body in making appointments."
The Attorney General of the United States was also of this view when he stated:
"The recess of the Senate during which the President shall have power to
ll a vacancy that may happen, means the period after the nal adjournment of
Congress for the session and before the next session begins; while an
adjournment during a session of Congress means a merely temporary suspension
of business from day to day, or for such brief periods of time as are agreed upon
by the joint action of the two houses. The President is not authorized to appoint
an o cer during the current holiday adjournment of the Senate, which will have
the effect of an appointment made in the recess occurring between two sessions
of the Senate." (President — Appointment of O cers — Holiday Recess, 1901, 23
Op. Atty. gen. 599, (U.S. C.A. Const. Art. 2, Sec. 2[2].
It is worthwhile to note that our Constitution in its paragraph 4, Section 10 of

Article VII speaks of "recess" without making any distribution between the sessions of
one congress and the sessions of another. And it is not trite to say that when the law
makes no distinction, no distinction should be made, especially if to do so would result
in a strained interpretation thereof and defeat and evident purpose of the framers of
the Constitution — in this instance, to render it certain that at all times there should be,
whether the Congress is in session or not, an o cer for every o ce, entitled to
discharge the duties thereof. (5 Hinds, op. cit., p. 853.)
II. Lapsing of Aytona's Appointment:
It is contended for the respondents that since 12 members of the Commission
on appointments ceased to be such upon the expiration of their term of o ce at
midnight of December 29, 1961, the Commission on Appointments likewise cased to
exist on the theory that the creation can not exist beyond the life of its creator at least
with respect to one-half of its members. This seems to stem from the wrong notion
that the Commission on Appointments is a creature of the Congress. This confuses the
Commission on Appointments as a constitutional body with its members. The body
continues to exist, but only its membership changes periodically. When the Constitution
provides in Section 13 of Article 6 thereof that "the Electoral Tribunals and the
Commission on Appointments shall be constituted within 30 days after the senate and
the House of Representatives shall have been organized with the election of their
President and Speaker, respectively", it did not mean that the Senate and the House of
Representatives thereby create said bodies, no more than the President can be said to
create the Supreme Court by appointing the Justices therein. it simply ordained that the
Commission be constituted or organized by electing the members thereof, whose
positions have already been created in virtue of Section 12 of the same Constitution. To
hold that the Electoral Tribunals and the Commissions on Appointments are non-
existing during the period from December 30, 1961 to January 22, 1962 (and during the
corresponding periods every four years thereafter) will result in an absurdity and a
situation destructive of the normal processes provided in the Constitution. One of such
absurd results would be that no electoral protest against any elected and proclaimed
congressman or senator can be legally led with the Electoral Tribunals within the
period prescribed by their rules, that is, within fteen days following the proclamation
of the results of the election, which period falls within the time when the Election
Tribunals (as is the case of Commission on Appointments) are allegedly non-existent.
The proceedings in the Constitutional Convention are cited to support the theory
that the Commission on Appointments is not a permanent commission. A review of the
records, however, of that convention reveals that what was intended in the proposed
draft was authorize the Commission on Appointments to hold sessions even when the
Congress is not in session. The mere fact that such a proposal was defeated and,
consequently, the word "permanent" was not adopted in the nal text, does not
important that the Constitution meant to give an off and on existence to the
Commission on Appointments lapsing every four years when the twelve of its members
cease to be such. On the contrary, it seems more logical to hold that the legal existence
of the Commission as well as the Electoral Tribunals continue irrespective of the
vacancies that may exist in the membership thereof. It is for this reasons that the
personnel of these bodies do not cease periodically, but continue to perform their
duties in their respective o ces for which they are legally paid their salaries by the
government.
It seems clear, therefore, that the Commission on Appointments did not lapse on
December 29, 1961. Neither did the appointment of Aytona lapse on that date because
the same could not be acted upon by the Commission on Appointments during the
recess of the Congress.
III. May the appointment of Aytona be legally recalled or withdrawn after he has
qualified for the position to which he was appointed?
Precedents are to the effect that when once an appointment has been extended
by the Chief Executive who, as is provided in our Constitution, has the sole power of
appointment subject only to the consent of the Commission on Appointments, and the
appointee has accepted the appointment, the same becomes complete and the
appointing power can not withdraw it except in cases where the tenure of the appointee
is at the Chief Executive's pleasure or upon grounds justifying removal and after due
process. This is not because the appointment constitutes a contract (for truly a public
o ce can not be subject of any contract), but because of the provisions of the
Constitution itself to the effect that "no o cer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law." If, therefore, the recall or
the withdrawn of the appointment of Aytona was not authorized by law, then his
assumption of the functions of his o ce on January 2, 1962 was clearly within his legal
right and the interference of Castillo, aggravated by the assistance or at least the
presence of members of the Armed Forces, was clearly unlawful.
The foregoing disposes, in my opinion, the legal issues and the rights of the
parties in the present case. But against these, to me, clear mandates of the Constitution
and the legal and judicial precedents, respondents have appealed to this Court for it to
exercise "judicial statesmanship" invoking the spirit of the constitution. It is claimed
that there was a manifest abuse of power by the outgoing President in extending, on
the eve of the expiration of his term, some three hundred and fty ad interim
appointments to ll an equal number of vacancies in the different branches of the
government; that no proper consideration was given of the merits of the appointees, it
appearing that in the case of at least some of the appointees to the judiciary, their
assurance of an immediate assumption of o ce or the taking of oath was made a
condition precedent to the appointments, and that there was a wild scramble in
Malacañang among the appointees on the night of December 29. We are scandalized
by this and expect the Court to apply the remedy. What of the proceedings in Congress
during the last day of session when bills after bills are passed in a manner not too
dissimilar to the described scene in Malacañang? Can the Supreme Court be expected
to correct this too by declaring all such laws as invalid just as we are asked to
invalidate these appointments?
Be this as it may, whatever may be our personal views on this matter, I agree with
Mr. Justice Concepcion that not all wrongs or even abuse of power can be corrected by
the exercise of the high prerogatives of the Supreme Court vested in it by the
Constitution. As I take it, the higher and more delicate is the prerogative, the greater
should be the degree of self-restraint in the exercise thereof, lest the ne and tested
scale of checks and balances set up by the Constitution be jarred. In the same manner
that we expect circumspection and care, even double care, on the part of the other two
co-equal coordinate departments of the government, so must we be most cautious and
slow in judging the morality, propriety and good faith involved in the actuations of the
other departments in matters coming within their competence. The remedy, I believe,
under the circumstances is with the Commission on Appointments to which the
appointments have been submitted. The more fact that it is expected that the
Commission on Appointments would be controlled by the party of the outgoing
President is immaterial, because legal processes can not be made to depend upon the
fortunes of political parties, for there is still the ultimate remedy by the people in the
exercise of their sovereign right which is the source of all authority. At any rate, as has
already been aptly said: the judiciary is not the repository of remedies for all political or
social evils, and that the judicial department has no power to revise even arbitrary or
unfair action of the other departments taken in pursuance of the power committed
exclusively to those departments by the Constitution.
May I add: all the scandalous circumstances brought to the attention of this
Court did not link the petitioner herein, save for the fact that his appointment was
extended on the same day as those issued under the unusual and irregular
circumstance attending the other appointments. If at all, there is evidence in favor of
Aytona to the effect that insofar as he is concerned, his appointment to the position of
Governor of the Central Bank has been under consideration for a long time and that he
is quali ed for the position. It can not, therefore, be said that with respect to him there
was no mature deliberation and due consideration of his quali cations and of the need
of the service. The charge was made that the position of Governor of the Central Bank
has been vacant for several months and that the president should have lled it earlier.
Yet, when the claiming that there was no immediate need for such action in view of the
fact that there was an Acting Governor. That it was really necessary to fill the position is
evidenced by the act of President Macapagal himself in making his own appointment
hardly twenty-four hours after he recalled the appointment of Aytona.
Summarizing, I would say that all the circumstances cited by the respondents
that have surrounded the issuance of the appointments in question, have to do with the
mode or manner of the exercise of the authority to make the appointments, quite apart
from the existence of the authority itself. The observation of good faith, morality the
propriety by the other two co-equal coordinate departments in the performance of their
functions must be secured by their sense of duty and o cial oath and not by any
supervisory power of the courts. The role of courts in our scheme of government is to
interpret the law and render justice under it. This simply means that whatever may be
our own personal feelings as to the propriety, morality, or wisdom of any o cial act or
actuation of a public o cer or any agency of the government within their respective
competence brought to the attention of the Court for adjudication, they should not be
permitted to prevail over clear legal considerations, for ours is a regime under the Rule
of Law.
In view of the foregoing, I am constrained to register my dissent.
Footnotes
1. These positions had been vacant for months.
2. The 4th Congress expired at midnight December 29, 1961.

3. 89 A.L.R., 135 Anno.
PADILLA, J., concurring:
1. Section 3, Article VI.

4. Section 4, Article VII.

BARRERA, J., dissenting:
1. The power of the U.S. President to make appointments is by and with the advice and consent
of the Senate.

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EN BANC

[G.R. No. L-19313. January 19, 1962.]

DOMINADOR R. AYTONA , petitioner, vs. ANDRES V. CASTILLO, ET AL. ,

1. POLITICAL LAW; APPOINTING POWER; MIDNIGHT OR LAST MINUTES

Without prejudice to the subsequent promulgation of a more extended opinion,

Under these constitutional provisions there seems to be no doubt that the

In addition to the reasons stated in the resolution adopted by this Court on

It is well settled that the granting of writs of prohibition and mandamus is

May an appointment be revoked by reason of error or fraud? This question was

xxx xxx xxx

"Where an appointment subject to con rmation by the senate is made by a

xxx xxx xxx

3. The irrevocability of the ad interim appointment adverted to above becomes

The justice, wisdom, policy, necessity, or expediency of a law which is

'And if vacancies happen, by resignation or otherwise, during the

"It means just what was meant by it in the Article of Confederation, in

'The United States in Congress assembled shall have authority to

It is worthwhile to note that our Constitution in its paragraph 4, Section 10 of

2. The 4th Congress expired at midnight December 29, 1961.

1. Section 3, Article VI.

4. Section 4, Article VII.

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