including government-owned or controlled
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA,
ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T.
CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary,
and RICHARD J. GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano,
Jr. and Virgilio E. Acierto for petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A.
7227,1 otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor
Richard J. Gordon of Olongapo City was appointed Chairman
and Chief Executive Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged in this original petition with
prayer for prohibition, preliminary injunction and temporary
restraining order "to prevent useless and unnecessary
expenditures of public funds by way of salaries and other
operational expenses attached to the office . . . ."2 Paragraph
(d) reads —
(d) Chairman administrator — The
President shall appoint a professional
manager as administrator of the Subic
Authority with a compensation to be
determined by the Board subject to the
approval of the Secretary of Budget, who
shall be the ex oficio chairman of the Board
and who shall serve as the chief executive
officer of the Subic Authority: Provided,
however, That for the first year of its
operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be
appointed as the chairman and chief
executive officer of the Subic
Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S.
Facility at the Subic, Zambales, and officers and members of
the Filipino Civilian Employees Association in U.S. Facilities in
the Philippines, maintain that the proviso in par. (d) of Sec.
13 herein-above quoted in italics infringes on the following
constitutional and statutory provisions: (a) Sec. 7, first par.,
Art. IX-B, of the Constitution, which states that "[n]o elective
official shall be eligible for appointment or designation in any
capacity to any public officer or position during his
tenure,"3 because the City Mayor of Olongapo City is an
elective official and the subject posts are public offices; (b)
Sec. 16, Art. VII, of the Constitution, which provides that
"[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint",4since it was Congress through
the questioned proviso and not the President who appointed
the Mayor to the subject posts;5 and, (c) Sec. 261, par. (g),
of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. — The following
shall be guilty of an election offense: . . .
(g) Appointment of new employees,
creation of new position, promotion, or
giving salary increases. — During the
period of forty-five days before a regular
election and thirty days before a special
election, (1) any head, official or appointing
officer of a government office, agency or
instrumentality, whether national or local,
LAW ON PUBLIC OFFICERS
corporations, who appoints or hires any
new employee, whether provisional,
temporary or casual, or creates and fills any
new position, except upon prior authority of
the Commission. The Commission shall not
grant the authority sought unless it is
satisfied that the position to be filled is
essential to the proper functioning of the
office or agency concerned, and that the
position shall not be filled in a manner that
may influence the election. As an exception
to the foregoing provisions, a new
employee may be appointed in case of
urgent need: Provided, however, That
notice of the appointment shall be given to
the Commission within three days from the
date of the appointment. Any appointment
or hiring in violation of this provision shall
be null and void. (2) Any government
official who promotes, or gives any increase
of salary or remuneration or privilege to any
government official or employee, including
those in government-owned or controlled
corporations . . . .
for the reason that the appointment of respondent Gordon to
the subject posts made by respondent Executive Secretary on
3 April 1992 was within the prohibited 45-day period prior to
the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par.
(d), of R.A. 7227 which states, "Provided, however, That for
the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority,"
violates the constitutional proscription against appointment or
designation of elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for
appointment or designation in any capacity
to any public office or position during his
tenure.
Unless otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other office
or employment in the Government or any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations or their
subsidiaries.
The section expresses the policy against the concentration of
several public positions in one person, so that a public officer
or employee may serve full-time with dedication and thus be
efficient in the delivery of public services. It is an affirmation
that a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described
in Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
and Anti-Graft League of the Philippines, Inc. v. Philip Ella C.
Juico, as Secretary of Agrarian Reform, G.R. No. 83815,6 ". .
. . should be allowed to attend to his duties and
responsibilities without the distraction of other governmental
duties or employment. He should be precluded from
dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness
and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he
basic idea really is to prevent a situation where a local elective
( A p p o i n t m e n t ) |1
official will work for his appointment in an executive position
in government, and thus neglect his constituents . . . ."7
In the case before us, the subject proviso directs the
President to appoint an elective official, i.e., the Mayor of
Olongapo City, to other government posts (as Chairman of
the Board and Chief Executive Officer of SBMA). Since this is
precisely what the constitutional proscription seeks to
prevent, it needs no stretching of the imagination to conclude
that the proviso contravenes Sec. 7, first par., Art. IX-B, of
the Constitution. Here, the fact that the expertise of an
elective official may be most beneficial to the higher interest
of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC)
permits the appointment of a local elective official to another
post if so allowed by law or by the primary functions of his
office.8 But, the contention is fallacious. Section 94 of the LGC
is not determinative of the constitutionality of Sec. 13, par.
(d), of R.A. 7227, for no legislative act can prevail over the
fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is
that section sought to be declared unconstitutional, we need
not rule on its validity. Neither can we invoke a practice
otherwise unconstitutional as authority for its validity.
In any case, the view that an elective official may be
appointed to another post if allowed by law or by the primary
functions of his office, ignores the clear-cut difference in the
wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph
authorizes holding of multiple offices by an appointive official
when allowed by law or by the primary functions of his
position, the first paragraph appears to be more stringent by
not providing any exception to the rule against appointment
or designation of an elective official to the government post,
except as are particularly recognized in the Constitution itself,
e.g., the President as head of the economic and planning
agency;9 the Vice-President, who may be appointed Member
of the Cabinet; 10 and, a member of Congress who may be
designated ex officio member of the Judicial and Bar
Council. 11
The distinction between the first and second paragraphs of
Sec. 7, Art. IX-B, was not accidental when drawn, and not
without reason. It was purposely sought by the drafters of the
Constitution as shown in their deliberation, thus —
MR. MONSOD. In other words, what then
Commissioner is saying, Mr. Presiding
Officer, is that the prohibition is more strict
with respect to elective officials, because in
the case of appointive officials, there may
be a law that will allow them to hold other
positions.
MR. FOZ. Yes, I suggest we make that
difference, because in the case of
appointive officials, there will be certain
situations where the law should allow them
to hold some other positions. 12
The distinction being clear, the exemption allowed to
appointive officials in the second paragraph cannot be
extended to elective officials who are governed by the first
paragraph.
It is further argued that the SBMA posts are merely ex
officio to the position of Mayor of Olongapo City, hence, an
excepted circumstance, citing Civil Liberties Union v.
Executive Secretary, 13 where we stated that the prohibition
against the holding of any other office or employment by the
President, Vice-President, Members of the Cabinet, and their
deputies or assistants during their tenure, as provided in Sec.
13, Art. VII, of the Constitution, does not comprehend
LAW ON PUBLIC OFFICERS
additional duties and functions required by the primary
functions of the officials concerned, who are to perform them
in an ex officio capacity as provided by law, without receiving
any additional compensation therefor.
This argument is apparently based on a wrong premise.
Congress did not contemplate making the subject SBMA posts
as ex officio or automatically attached to the Office of the
Mayor of Olongapo City without need of appointment. The
phrase "shall be appointed" unquestionably shows the intent
to make the SBMA posts appointive and not merely adjunct to
the post of Mayor of Olongapo City. Had it been the legislative
intent to make the subject positions ex officio, Congress
would have, at least, avoided the word "appointed" and,
instead, "ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully
aware that subject proviso may contravene Sec. 7, first par.,
Art. IX-B, but they nevertheless passed the bill and decided
to have the controversy resolved by the courts. Indeed, the
Senators would not have been concerned with the effects of
Sec. 7, first par., had they considered the SBMA posts as ex
officio.
Cognizant of the complication that may arise from the way the
subject proviso was stated, Senator Rene Saguisag remarked
that "if the Conference Committee just said "the Mayor shall
be the Chairman" then that should foreclose the issue. It is a
legislative choice." 15 The Senator took a view that the
constitutional proscription against appointment of elective
officials may have been sidestepped if Congress attached the
SBMA posts to the Mayor of Olongapo City instead of directing
the President to appoint him to the post. Without passing
upon this view of Senator Saguisag, it suffices to state that
Congress intended the posts to be appointive, thus nibbling in
the bud the argument that they are ex officio.
The analogy with the position of Chairman of the Metro Manila
Authority made by respondents cannot be applied to uphold
the constitutionality of the challenged proviso since it is not
put in issue in the present case. In the same vein, the
argument that if no elective official may be appointed or
designated to another post then Sec. 8, Art. IX-B, of the
Constitution allowing him to receive double
compensation 16 would be useless, is non sequitur since Sec.
8 does not affect the constitutionality of the subject proviso.
In any case, the Vice-President for example, an elective
official who may be appointed to a cabinet post under Sec. 3,
Art. VII, may receive the compensation attached to the
cabinet position if specifically authorized by law.
Petitioners also assail the legislative encroachment on the
appointing authority of the President. Section 13, par. (d),
itself vests in the President the power to appoint the Chairman
of the Board and the Chief Executive Officer of SBMA,
although he really has no choice under the law but to appoint
the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of
a person, by the person or persons having authority therefor,
to discharge the duties of some office or trust," 17 or "[t]he
selection or designation of a person, by the person or persons
having authority therefor, to fill an office or public function
and discharge the duties of the same. 18 In his
treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines
appointment as "the selection, by the authority vested with
the power, of an individual who is to exercise the functions of
a given office."
Considering that appointment calls for a selection, the
appointing power necessarily exercises a discretion. According
to Woodbury, J., 20 "the choice of a person to fill an office
constitutes the essence of his appointment," 21and Mr. Justice
( A p p o i n t m e n t ) |2
Malcolm adds that an "[a]ppointment to office is intrinsically
an executive act involving the exercise of
discretion." 22 In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court 23 we held:
The power to appoint is, in essence,
discretionary. The appointing power has
the right of choice which he may exercise
freely according to his judgment, deciding
for himself who is best qualified among
those who have the necessary
qualifications and eligibilities. It is a
prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power to
appoint. Appointment involves an exercise of discretion of
whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the
choice of the appointee is a fundamental component of the
appointing power.
Hence, when Congress clothes the President with the power
to appoint an officer, it (Congress) cannot at the same time
limit the choice of the President to only one candidate. Once
the power of appointment is conferred on the President, such
conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the qualifications
of the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of his
discretion to pick his own choice. Consequently, when the
qualifications prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the
discretion of the appointing power to choose and constitutes
an irregular restriction on the power of appointment. 24
In the case at bar, while Congress willed that the subject posts
be filled with a presidential appointee for the first year of its
operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to
only one eligible, i.e., the incumbent Mayor of Olongapo City.
Since only one can qualify for the posts in question, the
President is precluded from exercising his discretion to choose
whom to appoint. Such supposed power of appointment, sans
the essential element of choice, is no power at all and goes
against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of operations
of SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe
qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on
the President is a perfectly valid legislative act,
the proviso limiting his choice to one is certainly an
encroachment on his prerogative.
Since the ineligibility of an elective official for appointment
remains all throughout his tenure or during his incumbency,
he may however resign first from his elective post to cast off
the constitutionally-attached disqualification before he may be
considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8,
I propose the substitution of the word
"term" with TENURE.
MR. FOZ. The effect of the proposed
amendment is to make possible for one to
resign from his position.
MR. DAVIDE. Yes, we should allow that
prerogative.
MR. FOZ. Resign from his position to accept
an executive position.
LAW ON PUBLIC OFFICERS
MR. DAVIDE. Besides, it may turn out in a
given case that because of, say, incapacity,
he may leave the service, but if he is
prohibited from being appointed within the
term for which he was elected, we may be
depriving the government of the needed
expertise of an individual. 25
Consequently, as long as he is an incumbent, an elective
official remains ineligible for appointment to another public
office.
Where, as in the case of respondent Gordon, an incumbent
elective official was, notwithstanding his ineligibility,
appointed to other government posts, he does not
automatically forfeit his elective office nor remove his
ineligibility imposed by the Constitution. On the contrary,
since an incumbent elective official is not eligible to the
appointive position, his appointment or designation thereto
cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec. 13,
Art. VI, of the Constitution where "(n)o Senator or Member of
the House of Representatives may hold any other office or
employment in the Government . . . during his term without
forfeiting his seat . . . ." The difference between the two
provisions is significant in the sense that incumbent national
legislators lose their elective posts only after they have been
appointed to another government office, while other
incumbent elective officials must first resign their posts before
they can be appointed, thus running the risk of losing the
elective post as well as not being appointed to the other post.
It is therefore clear that ineligibility is not directly related with
forfeiture of office. ". . . . The effect is quite different where
it is expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to
incapacitate the incumbent of an office from accepting or
holding a second office (State ex rel. Van Antwerp v Hogan,
283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733,
61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147,
65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v
State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the
constitution, or statutes declare that persons holding one
office shall be ineligible for election or appointment to another
office, either generally or of a certain kind, the prohibition has
been held to incapacitate the incumbent of the first office to
hold the second so that any attempt to hold the second is void
(Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258,
283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible
for appointment to the position of Chairman of the Board and
Chief Executive of SBMA; hence, his appointment thereto
pursuant to a legislative act that contravenes the Constitution
cannot be sustained. He however remains Mayor of Olongapo
City, and his acts as SBMA official are not necessarily null and
void; he may be considered a de facto officer, "one whose
acts, though not those of a lawful officer, the law, upon
principles of policy and justice, will hold valid so far as they
involve the interest of the public and third persons, where the
duties of the office were exercised . . . . under color of a
known election or appointment, void because the officer was
not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of power or
defect being unknown to the public . . . . [or] under color of
an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be
such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5
Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122
Mass, 445, 23 Am. Rep., 323)." 28
( A p p o i n t m e n t ) |3
Conformably with our ruling in Civil Liberties Union , any and
all per diems, allowances and other emoluments which may
have been received by respondent Gordon pursuant to his
appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now
evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said
respondent made pursuant thereto need no longer be
discussed.
In thus concluding as we do, we can only share the lament of
Sen. Sotero Laurel which he expressed in the floor
deliberations of S.B. 1648, precursor of R.A. 7227, when he
articulated —
. . . . (much) as we would like to have the
present Mayor of Olongapo City as the Chief
Executive of this Authority that we are
creating; (much) as I, myself, would like to
because I know the capacity, integrity,
industry and dedication of Mayor Gordon;
(much) as we would like to give him this
terrific, burdensome and heavy
responsibility, we cannot do it because of
the constitutional prohibition which is very
clear. It says: "No elective official shall be
appointed or designated to another position
in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like
a mountain amidst the strife of storms or a rock in the ocean
amidst the raging of the waves." 30 One of the characteristics
of the Constitution is permanence, i.e., "its capacity to resist
capricious or whimsical change dictated not by legitimate
needs but only by passing fancies, temporary passions or
occasional infatuations of the people with ideas or
personalities . . . . Such a Constitution is not likely to be easily
tampered with to suit political expediency, personal ambitions
or ill-advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We
have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227,
which states: ". . . Provided, however, That for the first year
of its operations from the effectivity of this Act, the Mayor of
the City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority," is declared
unconstitutional; consequently, the appointment pursuant
thereto of the Mayor of Olongapo City, respondent Richard J.
Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments
received by respondent Gordon, if any, as such Chairman and
Chief Executive Officer may be retained by him, and all acts
otherwise legitimate done by him in the exercise of his
authority as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.
LAW ON PUBLIC OFFICERS
[G.R. No. 131429. August 4, 1999]
OSCAR BERMUDEZ, ARTURO A. LLOBRERA and
CLAUDIO L. DAYAON, petitioners,
vs. EXECUTIVE SECRETARY RUBEN TORRES,
BUDGET SECRETARY SALVADOR ENRIQUEZ,
JR., JUSTICE SECRETARY TEOFISTO
GUINGONA, JR., and ATTY. CONRADO
QUIAOIT, respondents.
DECISION
VITUG, J.:
The validity and legality of the appointment of
respondent Conrado Quiaoit to the post of Provincial
Prosecutor of Tarlac by then President Fidel V. Ramos is
assailed in this petition for review on certiorari on a pure
question of law which prays for the reversal of the
Order,[1] dated 20 October 1997, of the Regional Trial Court
(Branch 63) of Tarlac, Tarlac, dismissing the petition for
prohibition and/or injunction and mandamus, with a prayer
for the issuance of a writ of injunction/temporary restraining
order, instituted by herein petitioners.
The occurrence of a vacancy in the Office of the
Provincial Prosecutor of Tarlac impelled the main contestants
in this case, petitioner Oscar Bermudez and respondent
Conrado Quiaoit, to take contrasting views on the proper
interpretation of a provision in the 1987 Revised
Administrative Code. Bermudez, the First Assistant Provincial
Prosecutor of Tarlac and Officer-In-Charge of the Office of the
Provincial Prosecutor, was a recommendee [2] of then Justice
Secretary Teofisto Guingona, Jr., for the position of Provincial
Prosecutor. Quiaoit, on the other hand, would appear to have
had the support of then Representative Jose Yap of the
Second Legislative District of Tarlac.[3] On 30 June 1997,
Quiaoit emerged the victor when he was appointed by
President Ramos to the coveted office. Quiaoit received a
certified xerox copy of his appointment and, on 21 July 1997,
took his oath of office before Executive Judge Angel Parazo of
the Regional Trial Court (Branch 65) of Tarlac, Tarlac. On 23
July 1997, Quiaoit assumed office and immediately informed
the President, as well as the Secretary of Justice and the Civil
Service Commission, of that assumption. Bermudez refused to
vacate the Office of Provincial Prosecutor claiming that the
original copy of Quiaoits appointment had not yet been
released by the Secretary of Justice. [4] Quiaoit, nonetheless,
performed the functions and duties of the Office of Provincial
Prosecutor by issuing office orders and memoranda, signing
resolutions on preliminary investigations, and filing several
informations before the courts. Quiaoit had since been
regularly receiving the salary, RATA and other emoluments of
the office.
On 17 September 1997, Bermudez and Quiaoit were
summoned to Manila by Justice Secretary Guingona. The
three met at the Department of Justice and, following the
conference, Bermudez was ordered to wind up his cases until
15 October 1997 and to turn-over the contested office to
Quiaoit the next day.
In his First Indorsement, dated 22 September 1997, for
the Chief State prosecutor, Assistant Chief State Prosecutor
Nilo Mariano transmitted the original copy of Quiaoits
appointment to the Regional State Prosecutor Carlos de Leon,
Region III, at San Fernando, Pampanga. In turn, in his Second
Indorsement, dated 02 October 1997, Regional State
( A p p o i n t m e n t ) |4
Prosecutor de Leon forwarded to Quiaoit said original copy of
his appointment. On the basis of the transmittal letter of
Regional State Prosecutor de Leon, Quiaoit, as directed, again
so assumed office on 16 October 1997. On even date,
Bermudez was detailed at the Office of the Regional State
Prosecutor, Region III, in San Fernando, Pampanga.
In the meantime, on 10 October 1997, Bermudez
together with his co-petitioners Arturo Llobrera and Claudio
Dayaon, the Second Assistant Provincial Prosecutor and the
Fourth Assistant Provincial Prosecutor of Tarlac, respectively,
filed with the Regional Trial Court of Tarlac, a petition for
prohibition and/or injunction, and mandamus, with a prayer
for the issuance of a writ of injunction/temporary restraining
order, against herein respondents, challenging the
appointment of Quiaoit primarily on the ground that the
appointment lacks the recommendation of the Secretary of
Justice prescribed under the Revised Administrative Code of
1987. After hearing, the trial court considered the petition
submitted for resolution and, in due time, issued its now
assailed order dismissing the petition. The subsequent move
by petitioners to have the order reconsidered met with a
denial.
Hence, the instant recourse.
The core issue for consideration is whether or not the
absence of a recommendation of the Secretary of Justice to
the President can be held fatal to the appointment of
respondent Conrado Quiaoit. This question would, in turn,
pivot on the proper understanding of the provision of the
Revised Administrative Code of 1987 (Book IV, Title III,
Chapter II, Section 9) to the effect that-
All provincial and city prosecutors and their assistants shall be
appointed by the President upon the recommendation of
the Secretary.
Petitioners contend that an appointment of a provincial
prosecutor mandatorily requires a prior recommendation of
the Secretary of Justice endorsing the intended appointment
citing, by analogy, the case of San Juan vs. CSC [5]where the
Court held:
"x x x The DBM may appoint only from the list of
qualified recommendees nominated by the
Governor. If none is qualified, he must return the list of
nominees to the Governor explaining why no one meets the
legal requirements and ask for new recommendees who have
the necessary eligibilities and qualifications.
The Provincial Budget Officer (PBO) is expected to
synchronize his work with DBM.[6] (Emphasis supplied.)
Insisting on the application of San Juan, petitioners call
attention to the tenor of Executive Order No. 112[7] -
Section 1. All budget officers of provinces, cities and
municipalities shall be appointed henceforth by the Minister of
Budget and Management upon recommendation of the
local chief executive concerned x x x.
that, they claim, can be likened to the aforequoted provision
of the Revised Administrative Code of 1987. Respondents
argue differently.
LAW ON PUBLIC OFFICERS
The legislative intent is, of course, primordial. There is
no hard-and-fast rule in ascertaining whether the language in
a statute should be considered mandatory or directory, and
the application of a ruling in one particular instance may not
necessarily be apt in another[8] for each must be determined
on the basis of the specific law in issue and the peculiar
circumstances attendant to it. More often than not, the
problem, in the final analysis, is firmed up and addressed on
a case-to-case basis. The nature, structure and aim of the law
itself is often resorted to in looking at the legislative
intent. Generally, it is said that if no consequential rights or
liabilities depend on it and no injury can result from ignoring
it, and that the purpose of the legislature can be accomplished
in a manner other than that prescribed when substantially the
same results can be obtained, then the statute should be
regarded merely as directory, rather than as mandatory, in
character.[9]
An appointment to a public office is the unequivocal act
of designating or selecting by one having the authority
therefor of an individual to discharge and perform the duties
and functions of an office or trust.[10] The appointment is
deemed complete once the last act required of the appointing
authority has been complied with and its acceptance
thereafter by the appointee in order to render it
effective.[11] Appointment necessarily calls for an exercise of
discretion on the part of the appointing authority. [12] In
Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,[13] reiterated in Flores vs. Drilon,[14] this
Court has held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for himself
who is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the
appointing power x x x[15]
Indeed, it may rightly be said that the right of choice is the
heart of the power to appoint.[16] In the exercise of the power
of appointment, discretion is an integral part thereof.
When the Constitution[17] or the law[18] clothes the
President with the power to appoint a subordinate officer,
such conferment must be understood as necessarily carrying
with it an ample discretion of whom to appoint. It should be
here pertinent to state that the President is the head of
government whose authority includes the power of control
over all executive departments, bureaus and offices. Control
means the authority of an empowered officer to alter or
modify, or even nullify or set aside, what a subordinate officer
has done in the performance of his duties, as well as to
substitute the judgment of the latter,[19] as and when the
former deems it to be appropriate. Expressed in another way,
the President has the power to assume directly the functions
of an executive department, bureau and office.[20] It can
accordingly be inferred therefrom that the President can
interfere in the exercise of discretion of officials under him or
altogether ignore their recommendations.[21]
It is the considered view of the Court, given the above
disquisition, that the phrase upon recommendation of the
Secretary, found in Section 9, Chapter II, Title III, Book IV, of
the Revised Administrative Code, should be interpreted, as it
is normally so understood, to be a mere advise, exhortation
or indorsement, which is essentially persuasive in character
and not binding or obligatory upon the party to whom it is
made.[22] The recommendation is here nothing really more
than advisory in nature.[23] The President, being the head of
( A p p o i n t m e n t ) |5
the Executive Department, could very well disregard or do G.R. No. 95244 September 4, 1991
away with the action of the departments, bureaus or offices
DRS. ELLEN AMBAS, JOANNE DE LEON, MARIE
even in the exercise of discretionary authority, and in so
ESTELLA GUNABE, NERISSA BERNAL, RICARDO
opting, he cannot be said as having acted beyond the scope
TOLENTINO and RAUL CHRIZALDO E.
of his authority.
MORENA, petitioners,
vs.
The doctrine in San Juan, relied upon by petitioners, is DRS. BRIGIDA BUENASEDA and EFREN REYES; THE
tangential. While the tenor of the legal provision in Executive SECRETARY OF HEALTH; MERIT SYSTEMS
Order No. 112 has some similarity with the provision in the PROTECTION BOARD; AND CIVIL SERVICE
1987 Administrative Code in question, it is to be pointed out, COMMISSION, respondents.
however, that San Juan,[24] in construing the law, has
distinctively given stress to the constitutional mandate on local Gerardo P. Morena, Jr. for petitioners.
autonomy; thus:
RESOLUTION
The issue before the Court is not limited to the validity of the
appointment of one Provincial Budget Officer. The tug of war
between the Secretary of Budget and Management and the PADILLA, J.:
Governor of the premier province of Rizal over a seemingly
innocuous position involves the application of a most Prior to their termination from employment, which is the
important constitutional policy and principle, that of local subject of the petition at bar, petitioners were employed and
autonomy. We have to obey the clear mandate on local retained as resident trainee physicians by the Department of
autonomy. Where a law is capable of two interpretations, one Health, assigned to the National Center for Mental Health
in favor of centralized power in Malacaang and the other NCMH for purposes of brevity), under the Residency Program
beneficial to local autonomy, the scales must be weighed in of the government. By authority of the Secretary of Health,
favor of autonomy. petitioners were issued temporary appointments as resident
trainees on the following dates:
xxxxxxxxx 1. Ambas, – October
Ellen C. 14, 1988
When the Civil Service Commission interpreted the
recommending power of the Provincial Governor as purely
directory, it went against the letter and spirit of the 2. Bernal, – April 28,
constitutional provisions on local autonomy. If the DBM Nerissa C 1989
Secretary jealously hoards the entirety of budgetary powers (Renewal)
and ignores the right of local governments to develop self-
reliance and resoluteness in the handling of their own funds,
the goal of meaningful local autonomy is frustrated and set 3. De – October
back.[25] Leon, 13, 1988
Joanne
The Court there has explained that the President merely
exercises general supervision over local government units and 4. – October
local officials;[26] hence, in the appointment of a Provincial Gunabe, 20, 1988
Budget Officer, the executive department, through the Marie
Secretary of Budget and Management, indeed had to share Stella
the questioned power with the local government.

5. –
In the instant case, the recommendation of the Morena, December
Secretary of Justice and the appointment of the President are Raul 29, 1988
acts of the Executive Department itself, and there is no Chrizaldo
sharing of power to speak of, the latter being deemed for all
intents and purposes as being merely an extension of the
personality of the President. 6. –
Tolentino, February
WHEREFORE, the petition is DENIED. No costs. Ricardo U. 24, 1989

SO ORDERED.
(Renewal)
xxx xxx xxx1
Individual contracts of residency training were entered into by
and between petitioners and the NCMH, wherein it was
stipulated, among others, that NCMH would temporarily
employ petitioners as resident trainees for one (1) year,
renewable every year but not to exceed four (4) years; that
the resident trainee would not engage in private practice of
his profession even outside his regular office hours; and that
NCMH reserves the right to terminate the training of a resident
trainee for poor performance or failure to meet the standards

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) |6

of medical ethics, performance and behavior, as evaluated by
the Teaching/Training Staff of NCMH.2
In an undated confidential report,3 the NCMH Medical Training
Officer, Dr. Efren Reyes, recommended the termination of
petitioners' services because of poor academic performance
and low ranking. In addition to the foregoing grounds cited,
petitioner Dr. Raul Chrizaldo Morena was also found to have
violated the Code of Conduct of Resident Physicians. The
recommendation of the Training Officer for the termination of
petitioners' services was based on the result of an evaluation
conducted by the Residency Evaluation Committee on 16 June
1989 of all NCMH resident trainees.
In letters4 dated 16 June 1989, petitioners were individually
informed of the termination by the Residency Evaluation
Commission committee of their services effective 1 July 1989,
with the approval of the NCMH Chief. Twice, petitioners wrote
to the Secretary of Health questioning their termination.
When they received no reply, they wrote a letter-complaint to
the Chairman of the Civil Service Commission. The Civil
Service Commission (CSC) also failed to act on their letter-
complaint, thus prompting them to assail their termination
before the Merit Systems Protection Board (referred to
hereinafter as the Board), docketed as MSPB Case No. 299.
They alleged that the termination of their services by NCMH
was arbitrary and violative of the existing civil service laws,
regulations and the provisions of PD 1424 governing the
residency training program in government hospitals.
In an indorsement dated 17 August 1989, the letter-complaint
filed by petitioners with the Secretary of Health was referred
by the latter to the CSC for appropriate action. In the same
indorsement, the Secretary of Health confirmed the action of
NCMH in terminating petitioners' services as resident
trainees.5
On 28 August 1989, the Board rendered a decision6 declaring
petitioners' termination as not valid and ordered their
reinstatement to their former positions. It was the opinion of
the Board that the power to remove petitioners belongs to the
appointing authority, namely, the Secretary of Health, and
that, therefore, the NCMH through its representative has no
power to remove the petitioners.
After receipt of the decision of the Board, petitioners on 4
September 1989 filed a motion for execution of said
decision.7 Before said motion could be acted upon by the
Board, an-exparte manifestation8 was filed by petitioners in
connection with the 3rd Indorsement of the Secretary of
Health dated 17 August 1989.
On 14 September 1989 another ex-parte motion was filed by
petitioners, with the Board seeking clarification of the decision
on the issue of seniority, as well as salaries and benefits
accrued prior to their termination.9 On the same date, the
NCMH through its Chief moved for reconsideration of the 28
August 1989 decision of the Board, alleging that the Board
failed to appreciate the fact that the termination of petitioners'
services was done in good faith and with the approval and/or
confirmation of the Secretary of Health; and that as
"temporary" appointees, petitioners could be terminated from
employment at any time with or without cause.
Opposing the NCMH's motion for reconsideration, petitioners
contended that the renewal of appointment of a resident
trainee is discretionary upon the Secretary of Health; that the
designation in their appointment as "temporary' does not
remove the permanency of petitioners' appointment during
the period of their training; and that the motion for
reconsideration filed by NCMH was a "mere scrap of paper"
because petitioners were not furnished with a copy of said
motion.10
LAW ON PUBLIC OFFICERS
Taking cognizance of the affirmation and/or confirmation by
the Secretary of Health of petitioners' termination, the Board
set aside its 28 August 1989 decision in a resolution dated 25
October 1989, declaring that —
The affirmation or concurrence of the appointing
authority in their termination is tantamount to a
curative act relative to the previous act effected by
the Medical Training Officer and approved by the
Medical Center Chief, NCMH. In effect, it was the
appointing authority that terminated their services.
xxx xxx xxx
It bears stressing that under the laws (R.A. 1243 as
amended by R.A. 2251; further amended by P.D.
1424) governing the Residency Training provide that
they shall be appointed for a period of one year
renewable every year in the discretion of the
Secretary of Health or the Secretary of National
Defense as the case may be ...' These laws did not
mention the permanency of their appointments
during the duration of the training. It merely states
renewable every year subject to the sound discretion
of the appointing authorities. Non-renewal is merely
an expiration of the term of the appointment. Even
the petitioners (now oppositors), through counsel
admitted that the renewal of the appointment of a
resident is discretionary. The renewal extended to
some trainees cannot also automatically acquire
permanency since it mentioned TEMPORARY on the
face of the appointments.
The execution of the contract by the resident
trainees necessarily follows the acceptance of the
terms and conditions of the contract. In the same
manner that the acceptance of a temporary
appointments is also tantamount to the submission
to the legal consequences, that is that he can be
terminated at anytime with or without cause.
For clarification, it must be stated that petitioners are
entitled to back salaries from the time they were
illegally terminated up to the time their termination
was affirmed and concurred in by the appointing
authority – Secretary of Health.
xxx xxx xxx11
Upon receipt of said resolution, an appeal was filed by
petitioners with CSC assailing the finding of the Board that
they are only entitled to back salaries from the time of their
termination on 1 July 1989 to the time of the confirmation of
their termination by the Secretary of Health on 17 August
1989.
On 5 September 1990, the CSC affirmed the 25 October 1989
resolution of the Board, holding that since the nature of their
appointment was temporary, their services could be
terminated with or without cause. The CSC declared that the
contract signed by petitioners with NCMH bound them to the
condition stated therein that their training may be terminated
on the ground of poor performance, or in case of failure on
their part to meet the standards of medical ethics and
behavior; and that as authorities in their own field of
specialization, the evaluation conducted by the Committee as
to petitioners' performance during their training is presumed'
regular.12
Under the Hospital Residency Law governing the residency
program in government service, the appointment of resident
trainees is limited to a period of one (1) year, renewable every
year not exceeding the duration of the training program in a
particular field of medicine, at the discretion of the Secretary
of Health or National Defense, as the case may be. 13 The
( A p p o i n t m e n t ) |7
supervision and control of the government training program supervisors and chief of services about this
are under either the Secretary of Health or Secretary of problem.19
National Defense.14 Inasmuch as the NCMH is under the
The training of petitioners under the Psychiatric Residency
Department of Health, it is the Secretary of Health who has
Program with NCMH involved a special field of medicine.
the authority to appoint as well as remove the resident
Because of the nature of their training in psychiatry, the
trainees. The power to remove is deemed lodged in the same
NCMH had the right to set a standard to be met by the
body or person in which the power to appoint is vested.15
resident trainees, to produce graduates who are qualified and
Petitioners' appointment pursuant to the Hospital Residency skilled in the said field. To attain this purpose, the NCMH
Law was for a fixed period of one (1) year. Prior to the recommended to the Secretary of Health the termination of
expiration of the term, petitioners could be removed only for resident trainees who failed to come up to the standard set
just cause. The fact that petitioners' appointments were for such program.
classified as "temporary" did not grant a blanket authority to
However, the NCMH had no power to terminate the trainees.
the Secretary of Health to remove them at anytime without
Only the Secretary of Health, as the appointing authority, had
cauge for the term fixed by law protects the right of the
the power to remove them from the service. Thus, the
resident trainees from being removed from office without
removal of petitioners by NCMH effective 1 July 1989 was not
cause. A "term" of office fixed by law allows the appointee to
valid. But, the confirmation on 17 August 1989 made by the
hold office, perform its functions, and enjoy its privileges and
Secretary of Health of petitioners' termination had the force
emoluments until the expiration of said period. 16 It is the
and effect of a valid removal, effective on the date such
definite period of time prescribed by law by which an officer
confirmation was made.
may hold office.17
The Secretary of Health did not commit grave abuse of
The separate appointments extended to petitioners were for
discretion in terminating petitioners from the service because
a definite period of one (1) year. Applying the provisions of
the same was done with just cause, i.e., the petitioners' poor
the Hospital Residency Law to the expiration of the term of
academic performance and low ranking in the evaluation
one (1) year, petitioners' appointments could be renewed only
conducted by the Residency Evaluation Committee of NCMH.
at the discretion of the Secretary of Health. The non-renewal
Under the circumstances, the valid removal of petitioners took
of their appointments with or without cause at the end of their
effect only 17 August 1989, and, therefore, they are entitled
term, is a valid mode of termination.
to backwages from 1 July 1989 to 17 August 1989.
Records show that the termination of petitioners' services by
There is no merit to petitioners' claim that they were deprived
NCMH on 1 July 1989 which was thereafter affirmed by the
of due process because they were not given notice of the
Secretary of Health on 17 August 1989, was made before the
motion for reconsideration filed by respondent Dr. Buenaseda,
expiration of their respective terms. Inasmuch as their term
on behalf of NCMH. Although petitioners were not duly
had not expired at the time of their termination or dismissal,
furnished any notice of said motion, they were nonetheless
it is necessary that such removal be for cause.
able to file their arguments or opposition to the allegations
Based on the result of evaluation conducted by the Residency raised therein, before the said motion for reconsideration was
Evaluation Committee on 16 June 1989, petitioners obtained resolved by the Board, reversing its original decision.
a poor rating in academic performance and a low ranking in
ACCORDINGLY, the petition is DISMISSED.
said evaluation.18 The Board recommended their termination
for the following reasons: SO ORDERED.
1. DR. ELLEN AMBAS — First Year Resident Physician
Poor academic performance in the past two quarter
evaluation. Board's decision was unanimous.
2. DR. JOANNE DE LEON — First year Resident
Physician Low ranking in the overall performance
evaluation. Case observational report made by her
continuing supervisor points to poor academic
performance as expected of her year level (Dr.
Galvez), and her hysterical personality trait does not
augur well as a Psychiatrist in training. (Dr. Laraya).
3. DR. MARIE STELLA GUNABE — First Year Resident
Phys. Low academic performance. Dr. Galvez
described her as a scatter brain in her work.
4. DR. RICARDO TOLENTINO — Second Year
Resident Phys. Poor academic performance. This
rating have been (sic) noted as early as his first year
of training but was given a 'chance' to change but to
no avail.
5. DR. NERISSA BERNAL — Second Year Resident
Physician Poor academic performance. She ranked
second to the last among her peers. Marked defect
in attitudinal and interpersonal behavior was
consistently noted in her two major areas of rotation.
6. DR. RAUL MORENA — Second Year Resident
Physician Poor academic performance. Violation of
the Code of Conduct of Resident Physicians. He
received several warnings and advises from clinical

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) |8

 G.R. No. 184219 January 30, 2012 (vice Carlos S. Caabay) [DEPUTY DIRECTOR]

SAMUEL B. ONG, Petitioner,

vs.
OFFICE OF THE PRESIDENT, ET AL., Respondents.
REYES, J.:
The Case
Before us is a petition for review[1] on certiorari under Rule 45
of the Rules of Court filed by Samuel B. Ong (Ong) to assail
the Decision[2] rendered by the Court of Appeals (CA) on
August 5, 2008 in CA-G.R. SP No. 88673, the dispositive
portion of which reads:
xxx
On June 3, 2004, the petitioner received from
respondent Reynaldo Wycoco Memorandum
Circular No. 02-S.2004 informing him that his
appointment, being co-terminus with the
appointing authority's tenure, would end
effectively at midnight on June 30, 2004 and,
unless a new appointment would be issued in his
favor by the President consistent with her new
tenure effective July 1, 2004, he would be
occcupying his position in a de facto/hold[-]over
status until his replacement would be appointed.

On December 01, 2004, the President appointed

WHEREFORE, in view of the foregoing
respondent Victor A. Bessat as NBI Director III as
premises, the petition for quo warranto filed
replacement of the petitioner. Consequently,
in this case is hereby DENIED.
respondent Wycoco notified the petitioner that,
effective on December 17, 2004, the latter should
cease and desist from performing his functions as
SO ORDERED.[3]
NBI Director III in view of the presidential
appointment of respondent Bessat as petitioner's
Ong died on May 22, 2009 during the pendency of the instant replacement. The petitioner received the
aforementioned notice only on January 27,
petition.[4] Admittedly, Ong's death rendered the prayer for
2005.[7] (underscoring supplied and citations
reinstatement in the petition for quo warranto as moot and
academic. However, substitution [5] was sought because in the omitted)
event that the Court would rule that Ong was indeed entitled
to the position he claimed, backwages pertaining to him can
On February 22, 2005, Ong filed before the CA a petition
still be paid to his legal heirs. Per Resolution[6]issued on
for quo warranto. He sought for the declaration as null and
January 10, 2011, we granted the motion for substitution. The
void of (a) his removal from the position of NBI Director III;
deceased petitioner is now herein substituted by his wife
and (b) his replacement by respondent Victor Bessat (Bessat).
Elizabeth, and children, Samuel Jr., Elizabeth and Carolyn, all
Ong likewise prayed for reinstatement and backwages.
surnamed Ong.

The CA denied Ong's petition on grounds:

Antecedents Facts

A petition for quo warranto is a proceeding to

The CA aptly summarized the facts of the case before the
filing of the petition for quo warranto as follows:
The petitioner [Ong] joined the National Bureau of
Investigation (NBI) as a career employee in 1978.
He held the position of NBI Director I from July 14,
1998 to February 23, 1999 and NBI Director II from
February 24, 1998 to September 5, 2001. On
September 6, 2001, petitioner was appointed
Director III by the President. His appointment
paper pertinently reads:
xxx
Pursuant to the provisions of existing laws, the
following are hereby appointed to the NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT
OF JUSTICE co-terminus with the appointing
authority:
xxx
SAMUEL B. ONG - DIRECTOR III
determine the right of a person to the use or exercise
of a franchise or office and to oust the holder from
its enjoyment, if his claim is not well-founded, or if
he has forfeited his right to enjoy the
privilege.[8] Where the action is filed by a private
person, in his own name, he must prove that he is
entitled to the controverted position, otherwise,
respondent has a right to the undisturbed possession
of the office.[9]
Section 27 of the Administrative Code of 1987, as
amended, classifies the appointment status of public
officers and employees in the career service into
permanent and temporary. A permanent
appointment shall be issued to a person who meets
all the requirements for the position to which he is
being appointed, including appropriate eligibility
prescribed, in accordance with the provisions of law,
rules and standards promulgated in pursuance
thereof. In the absence of appropriate eligibles and
it becomes necessary in the public interest to fill a
vacancy, a temporary appointment shall be issued to
a person who meets all the requirements for the
position to which he is being appointed except the
appropriate civil service eligibility; provided, that
such temporary appointment shall not exceed twelve

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) |9

months, but the appointee may be replaced sooner
if a qualified civil service eligible becomes available.
x x x In Cuadra v. Cordova,[10] temporary
appointment is defined as one made in an acting
capacity, the essence of which lies in its temporary
character and its terminability at pleasure by the
appointing power. Thus, the temporary appointee
accepts the position with the condition that he shall
surrender the office when called upon to do so by
the appointing authority. The termination of a
temporary appointment may be with or without a
cause since the appointee serves merely at the
pleasure of the appointing authority.
In the career executive service, the acquisition of
security of tenure presupposes a permanent
appointment. As held in General v. Roco,[11] two
requisites must concur in order that an employee in
the career executive service may attain security of
tenure, to wit: 1) CES eligibility[;] and 2)
appointment to the appropriate CES rank.
In the present case, it is undisputed that the
petitioner is a non-CESO eligible. At best, therefore,
his appointment could be regarded only as
temporary and, hence, he has no security of tenure.
Such being the case, his appointment can be
withdrawn at will by the President, who is the
appointing authority in this case, and at a moment's
notice.[12]
Moreover, a perusal of the petitioner's appointment
will reveal that his appointment as NBI Director III is
co-terminous with the appointing authority.
Correlatively, his appointment falls under Section 14
of the Omnibus Rules Implementing Book V of the
Revised Administrative Code of 1987 which provides
that:[13]
Sec. 14. An appointment may also be co-
terminous which shall be issued to a person
whose entrance and continuity in the service is
based on the trust and confidence of the
appointing authority or that which is subject to
his pleasure, or co-existent with his tenure, or
limited by the duration of project or subject to
the availability of funds.
The co-terminous status may thus be classified
as follows:
xxxx
(2) Co-terminous with the appointing authority
when appointment is co-existent with the
tenure of the appointing authority or at his
pleasure; x x x
xxxx
Thus, although petitioner's appointment is co-
terminous with the tenure of the President, he
LAW ON PUBLIC OFFICERS
nevertheless serves at the pleasure of the President
and his appointment may be recalled anytime. The
case of Mita Pardo de Tavera v. Philippine
Tuberculosis Society, Inc.[14] delineated the nature
of an appointment held at the pleasure of the
appointing power in this wise:
An appointment held at the pleasure of the
appointing power is in essence temporary in
nature. It is co-extensive with the desire of the
Board of Directors. Hence, when the Board opts to
replace the incumbent, technically there is no
removal but only an expiration of term and in an
expiration of term, there is no need of prior notice,
due hearing or sufficient grounds before the
incumbent can be separated from office. The
protection afforded by Section 7.04 of the Code of
By-Laws on Removal [o]f Officers and Employees,
therefore, cannot be claimed by petitioner.
All told, petitioner's appointment as well as its
consequent termination falls within the ambit of the
discretion bestowed on the appointing authority, the
President. Simply put, his appointment can be
terminated at any time for any cause and without
the need of prior notice or hearing since he can be
removed from his office anytime. His termination
cannot be said to be violative of Section 2(3), Article
IX-B of the 1987 Constitution. When a temporary
appointee is required to relinquish his office, he is
being separated from office because his term has
expired.[15] Starkly put, upon the appointment of
respondent Bessat as his replacement, his term of
office had already expired.
Likewise, it is inconsequential that the petitioner was
replaced by another non-CESO eligible, respondent
Besat. In a quo warranto proceeding[,] the person
suing must show that he has a clear right to the
office allegedly held unlawfully by another. Absent
that right, the lack of qualification or eligibility of the
supposed usurper is immaterial.[16]
Indeed, appointment is an essentially discretionary
power and must be performed by the officer in which
it is vested according to his best lights, the only
condition being that the appointee should possess
the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground
that there are others better qualified who should
have been preferred. This is a political question
involving considerations of wisdom which only the
appointing authority can decide.[17]
In sum, quo warranto is unavailing in the instant
case, as the
public office in question has not been usurped,
intruded into or unlawfully held by respondent
Bessat. The petitioner had no legal right over the
disputed office and his cessation from office involves
no removal but an expiration of his term of office. [18]
Hence, the instant petition ascribing to the CA the following
errors:
( A p p o i n t m e n t ) | 10
I. THE CA ERRED WHEN IT SUSTAINED THE VALIDITY OF
THE PETITIONER'S REMOVAL BY
RESPONDENT WYCOCO AS NBI DIRECTOR III (DEPUTY
DIRECTOR).[19]
II. THE CA ERRED IN HOLDING THAT SINCE THE
PETITIONER HELD A CO-TERMINOUS
APPOINTMENT, HE IS TERMINABLE AT THE
PLEASURE OF THE APPOINTING POWER.[20]
Citing Ambas v. Buenaseda[21] and Decano v. Edu,[22] the
instant petition emphasizes that the power of removal is
lodged in the appointing authority. Wycoco, and not the
President, issued Memorandum Circular (MC) No. 02-S.2004
informing Ong that his co-terminous appointment as Director
III ended effectively on June 30, 2004. The issuance of MC
No. 02-S.2004 was allegedly motivated by malice and revenge
since Ong led the NBI employees in holding rallies in July 2003
to publicly denounce Wycoco. Hence, Bessat's assumption of
the position was null and void since it was technically still
occupied by Ong at the time of the former's appointment.
It is further alleged that it was erroneous for the CA to equate
an
appointment co-terminous with the tenure of the appointing
authority with one that is at the pleasure of such appointing
authority.[23] Citing Alba, etc.. v. Evangelista, etcl.,[24] Ong's
counsel distinguished a term as the time during which the
officer may claim to hold office as of right from a tenure which
represents the term during which the incumbent actually
holds the office. Ong's appointment, from which he cannot be
removed without just cause, was co-terminous with the
President's tenure which ended not on June 30, 2004, but only
on June 30, 2010.
Section 2(b), Article IX-G of the 1987 Constitution and Jocom
v. Regalado[25] are likewise cited to stress that government
employees, holding both career and non-career service
positions, are entitled to protection from arbitrary removal or
suspension. In the case of Ong, who started his employment
in 1978 and rose from the ranks, it is allegedly improper for
the CA to impliedly infer thatthe President acted in bad faith
by converting his supposed promotional appointment to one
removable at the pleasure of the appointing authority.
In its Comment[26] to the petition, the Office of the Solicitor
General (OSG) maintains that the replacement of Ong by
Bessat was fair, just and in
accord with the doctrine enunciated in Aklan College v.
Guarino,[27] and with Sections 13[28]and 14,[29] Rule V, Civil
Service Commission (CSC) Resolution No. 91-1631 issued on
December 27, 1991. Section 13 substantially provides that
only a temporary appointment can be issued to a person who
does not have the appropriate civil service eligibility. Section
14(2), on the other hand, defines a co-terminous appointment
as one co-existent with the tenure of the appointing authority
or at his pleasure. The last paragraph of Section 14 states that
appointments which are co-terminous with the appointing
authority shall not be considered as permanent.
LAW ON PUBLIC OFFICERS
The OSG also points out that in issuing MC No. 02-
S.2004, Wycoco did not remove Ong as Director III but merely
reminded the latter that after June 30, 2004, his appointment
shall lapse into a de facto/hold-over status unless he was re-
appointed. Ong's colleagues applied for re-appointment.
Bessat was in fact re-appointed as Director II on August 13,
2004. Subsequently, on December 1, 2004, the President
appointed Bessat as Director III, effectively replacing Ong.
Further, the OSG claims that when Ong accepted promotional
appointments in the Career Executive Service (CES) for which
he did not have the required eligibility, he became a
temporary employee and had impliedly abandoned his right
to security of tenure.
Our Ruling
The petition is bereft of merit.
MC No. 02-S.2004 did not remove Ong from the
position of Director
III. Assuming arguendo that it did, the defect was
cured when the President, who was the appointing
authority herself, in whose hands were lodged the
power to remove,
appointed Bessat, effectively revoking Ong's
appointment.
MC No. 02-S.2004,[30] addressed to Ong, Bessat, Deputy
Director Nestor Mantaring, and Regional Director Edward
Villarta, in part reads:
Records indicate your appointment status
as co-terminus with the appointing power's
tenure which ends effectively at midnight of
this day, 30 June 2004.
Unless, therefore, a new appointment is
extended to you by Her Excellency GLORIA
MACAPAGAL-ARROYO, consistent with her
new tenure effective 01 July 2004, your
services shall lapse into a de facto/hold[-
]over status, to ensure continuity of
service, until your replacements are
appointed in your stead.[31]
On December 1, 2004, the President appointed Bessat as
Ong's replacement.[32] Bessat was notified on December 17,
2004. Wycoco
furnished Ong with a Notice,[33] dated December 20, 2004,
informing the latter that he should cease from performing the
functions of Director III, effective December 17, 2004.
It is argued that in the hands of the appointing
authority are lodged the power to remove. Hence, Wycoco
allegedly acted beyond the scope of his authority when he
issued MC No. 02-S.2004.
This Court notes that MC No. 02-S.2004 did not in
effect remove Ong from his post. It merely informed Ong that
records of the NBI showed that his co-terminous appointment
had lapsed into a de facto/hold-over status. It likewise
apprised him of the consequences of the said status.
( A p p o i n t m e n t ) | 11

Be that as it may, if we were to assume for
argument's sake that Wycoco removed Ong from his position
as Director III by virtue of the
former's issuance of MC No. 02-S.2004, still, the defect was
cured when the President herself issued Bessat's appointment
on December 1, 2004. The appointing authority, who in this
case was the President, had effectively revoked Ong's
appointment.
Ong lacked the CES eligibility required for the
position of Director III and his appointment
was co-terminus with the appointing
authority. His appointment being both
temporary and co-terminous in nature, it can
be revoked by the President even without
cause and at a short notice.
This Court likewise finds no error in the CA's ruling that since
Ong held a co-terminous appointment, he was removable at
the pleasure of the
appointing authority.
It is established that no officer or employee in the Civil Service
shall be removed or suspended except for cause provided by
law.[34] However, this admits of exceptions for it is likewise
settled that the right to security of tenure is not available to
those employees whose appointments are contractual and co-
terminous in nature.[35]
In the case at bar, Ong's appointment as Director III
falls under the classifications provided in (a) Section 14(2) of
the Omnibus Rules Implementing Book V of the Administrative
Code, to wit, that which is co-
existent with the tenure of the appointing authority or at his
pleasure; and (b) Sections 13(b)[36] and 14(2)[37] of Rule V,
CSC Resolution No. 91-1631, or that which is both a
temporary and a co-terminous appointment. The appointment
is temporary as Ong did not have the required CES eligibility.
The case of Amores v. Civil Service Commission, et
al.[38] is instructive anent the nature of temporary
appointments in the CES to which the position of Director III
held by Ong belonged. The Court declared:
An appointment is permanent where the appointee
meets all the requirements for the position to
which he is being appointed, including the
appropriate eligibility prescribed, and it
is temporary where the appointee meets all the
requirements for the position except only the
appropriate civil service eligibility.
xxxx
x x x Verily, it is clear that the possession of the
required CES eligibility is that which will make an
appointment in the career executive service a
permanent one. x x x
LAW ON PUBLIC OFFICERS
Indeed, the law permits, on many occasions, the
appointment of non-CES eligibles to CES positions
in the government in the absence of appropriate
eligibles and when there is necessity in the interest
of public service to fill vacancies in the
government. But in all such cases, the
appointment is at best merely temporary as it is
said to be conditioned on the subsequent obtention
of the required CES eligibility. x x x
xxx
Security of tenure in the career executive service,
which presupposes a permanent appointment,
takes place upon passing the CES examinations
administered by the CES Board. x x x
At this juncture, what comes unmistakably clear is
the fact that because petitioner lacked the proper
CES eligibility and therefore had not held the
subject office in a permanent capacity, there could
not have been any violation of petitioners
supposed right to security of tenure inasmuch as
he had never been in possession of the said right
at least during his tenure as Deputy Director for
Hospital Support Services. Hence, no challenge
may be offered against his separation from office
even if it be for no cause and at a moments notice.
Not even his own self-serving claim that he was
competent to continue serving as Deputy Director
may actually and legally give even the slightest
semblance of authority to his thesis that he should
remain in office. Be that as it may, it bears
emphasis that, in any case, the mere fact that an
employee is a CES eligible does not automatically
operate to vest security of tenure on the appointee
inasmuch as the security of tenure of employees in
the career executive service, except first and
second-level employees, pertains only to rank and
not to the office or position to which they may be
appointed.[45][39] (underscoring supplied and
citations omitted)
The Court is categorical in the Amores case that an appointee
without the requisite CES eligibility cannot hold the position in
a permanent capacity. Temporary appointments are made if
only to prevent hiatus in the government's rendition of public
service. However, a temporary appointee can be removed
even without cause and at a moment's notice. As to those
with eligibilities, their rights to security of tenure pertain to
ranks but not to the positions to which they were appointed.
Ong never alleged that at any time during which he
held the Director III position, he had acquired the requisite
eligibility. Thus, the right to
security of tenure did not pertain to him at least relative to
the Director III position.
The next logical query to be resolved then is whether
or not Ong, as an appointee holding a position co-terminus
with the appointing authority, was entitled to remain as
Director III until the end of the President's tenure on June 30,
2010.
( A p p o i n t m e n t ) | 12
 We likewise rule in the negative.
This Court recognizes Ong's lengthy service rendered to the
government and deeply commisserates with his earlier
Both Section 14 of the Omnibus Rules Rules Implementing
plight. However, we cannot grant Ong the reliefs he sought
Book V of the Administrative Code and Section 14 (2) of Rule
as law and jurisprudence clearly dictate that being a
V, CSC Resolution No. 91-1631 define a co-terminous
temporary and co-terminous appointee, he had no vested
appointment as one co-existent with the tenure of the
rights over the position of Director III.
appointing authority or at his pleasure.

IN VIEW OF THE FOREGOING, the petition is DENIED. The

In Mita Pardo de Tavera v. Philippine Tuberculosis Society,
Decision rendered by the Court of Appeals on August 5, 2008
Inc.[40] cited by the CA in its decision, we sustained the
in CA-G.R. SP No. 88673 is AFFIRMED.
replacement of an incumbent, who held an appointment at
the pleasure of the appointing authority. Such appointment
was in essence temporary in nature. We categorized the
SO ORDERED.
incumbent's replacement not as removal but rather as an
expiration of term and no prior notice, due hearing or cause
were necessary to effect the same. In Decano v. Edu,[41] we
ruled that the acceptance of a
temporary appointment divests an appointee of the right to
security of tenure against removal without cause. Further,
in Carillo vs. CA,[42] we stated that one who holds a temporary
appointment has no fixed tenure of office; his employment
can be terminated at the pleasure of the appointing authority,
there being no need to show that the termination is for cause.

In Ong's case, his appointment was temporary and co-

terminous. The doctrines enunciated in the cases of Mita
Pardo de Tavera, Decano, and Carillo apply. Hence, no legal
challenge can be properly posed against the President's
appointment of Bessat as Ong's replacement. The CA correctly
ruled that in quo warranto proceedings, the petitioner must
show that he has a clear right to the office allegedly held
unlawfully by another and in the absence of the said right, the
lack of qualification or eligibility of the supposed usurper is
immaterial. Stated differently, where a non-eligible holds a
temporary appointment, his replacement by another non-
eligible is not prohibited.[43]

We note that Ong's counsel had painstakingly drawn

distinctions between a term and a tenure. It is argued that
since Ong's appointment was co-terminous with the
appointing authority, it should not had lapsed into a de
facto status but continued until the end of the President's
tenure on June 30, 2010.

Under the Omnibus Rules Implementing the Revised

Administrative Code and CSC Resolution No. 91-1631, a co-
terminous appointment is defined as one co-existing with the
tenure of the appointing authority or at his pleasure. Neither
law nor jurisprudence draws distinctions between
appointments co-existing with the term of the appointing
authority on one hand, and one co-existing with the
appointing authority's tenure on the

other. In the contrary, under the aforecited rules, tenure and

term are used rather loosely and interchangeably.

In Ong's case, the issues needed to be disposed of revolve

around the concepts of temporary and co-terminous
appointments. The distinctions
between term and tenure find no materiality in the instant
petition. Besides, whether or not the President's term ended
on June 30, 2004 or her tenure ceased on June 30, 2010, the
fact remains that she appointed Bessat as Director III, in
effect revoking Ong's temporary and co-terminous
appointment.

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 13

 G.R. No. L-52091 March 29, 1982
TERESO V. MATURAN, petitioner-appellant,
vs.
Mayor SANTIAGO MAGLANA of San Francisco,
Southern Leyte, Vice-Mayor HONORIO MAGONCIA,
Municipal Councilors BONIFACIO AMARGA, JR.,
ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON
GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO
BACUS, VICTOR JATAYNA, SR., JUANCHO MORI, Chief
of Police FRANCISCO DUTERTE, Municipal Treasurer
RAMON TOLIBAS and the MUNICIPALITY OF SAN
FRANCISCO, SOUTHERN LEYTE, respondents-appellees.
DE CASTRO, J.:
This case was certified to this Court by the Court of Appeals
pursuant to its resolution dated October 30, 1979, the issue
raised herein being purely legal, which is the interpretation of
Presidential Decree No. 12-A and Letter of Instruction No. 14
in relation to the present case.
Petitioner was appointed as patrolman of San Francisco,
Southern Leyte on February 1, 1965 with a compensation of
P540.00 per annum. On October 1, 1967 he was promoted to
the rank of police sergeant at P720.00 per annum. On October
8, 1968 and July 1, 1969 petitioner's salary was adjusted to
P1,320.00 and P1,800.00 per annum, respectively. All the
aforesaid appointments of petitioner were provisional. On July
1, 1970 his provisional appointment was renewed. Likewise
on July 1, 1971 his provisional appointment was renewed with
an increase in pay in the amount of P2,640.00 per annum.
On September 15, 1972, respondent Mayor Santiago Maglana
suspended the petitioner from office because of two pending
criminal cases against him, namely Criminal Case No. 236, for
falsification of public document by making untruthful
statement in the narration of facts, and Criminal Case No. 312,
for falsification of public document. On October 2, 1972
respondent Vice-Mayor Honorio Magoncia, who was then the
Acting Mayor instructed petitioner together with Chief of
Police Francisco Duterte and Patrolman Asisclo Irong, to
tender their resignations pursuant to the Letter of Instruction
No. 14 of the President of the Philippines. Petitioner submitted
his letter of resignation on October 9, 1972. Petitioner's
resignation was approved on January 19, 1973 and petitioner
was accordingly informed thereof.
In a letter dated February 19, 1973 petitioner sought the
reconsideration of the approval of his resignation for being
null and void on the ground that Letter of Instruction No. 14
does not apply to him.
In the meantime, Criminal Case Nos. 236 and 312 were
dismissed on January 31, 1973 and November 5, 1973,
respectively.
In a letter dated January 12, 1974, Hon. Juan Ponce Enrile
then Acting Chairman of the National Police Commission
informed petitioner that due to the dismissal of the aforesaid
criminal cases, the latter's preventive suspension has been
lifted and petitioner was directed to report for duty to his Chief
of Police. Petitioner reported for duty on February 1, 1974 but
Chief of Police Francisco Duterte refused to accept the former
in the police force.
Respondent Mayor sent a letter dated February 5, 1974 to the
Chairman of the National Police Commission requesting advice
as to whether the resignation tendered by petitioner pursuant
to letter of Instruction No. 14 is valid. In a reply letter dated
August 13, 1974 the Deputy Executive Commissioner stated
that since petitioner resigned from office on October 2, 1972,
the lifting of his suspension as directed in the National Police
Commission's letter dated January 12, 1974 is no longer
LAW ON PUBLIC OFFICERS
feasible, the same having been rendered moot and academic;
that said office had occasion to rule that resignations
submitted by members of the police force in compliance with
the provisions of Letter of Instruction No. 14 are valid, said
Instruction being broad in scope to include both local and
national officials.
Petitioner sought the intervention of the Governor of Southern
Leyte to no avail, hence, on May 21, 1974 petitioner filed a
petition for mandamus with claim for back salaries, traveling
expense and damages before the Court of First Instance of
Southern Leyte, Branch III.
It was alleged by petitioner that the refusal of respondents
Mayor and Chief of Police to reinstate him is a violation of
paragraph 7 of Presidential Decree No. 12-A which provides:
7. Members of the police force who have
been preventively suspended shall, upon
exoneration be entitled to immediate
reinstatement and payment of the entire
salary they failed to receive during the
period of suspension;
that the case of petitioner falls squarely within the purview of
Presidential Decree No. 12-A which was promulgated on
October 4, 1972 and which governs policemen with pending
cases; and that Letter of Instruction No. 14 under whose
provisions petitioner was made to resign is not applicable to
policemen.
In respondents' answer dated July 3, 1974, they set up the
defense that petitioner has falsely entered in his duly sworn
information sheet that he is a high school graduate of the
University of Manila during the school year 1954-55, but in his
Personal Data Sheet, CS Form No. 212, dated October 8, 1968
he feloniously alleged and/or entered therein that he is a
graduate of the Pana-on Academy in the school year 1950-51
when in truth he was only a second year high school student;
that petitioner, who has voluntarily resigned, needs a new
appointment and has to meet the qualifications required by
law among which, are, that he must be at least a high school
graduate and not over 33 years of age; that petitioner falls
short of these requirements; and that petitioner is notoriously
undesirable, publicly known to be of bad moral character and
oftentimes got drunk while on duty.
On February 4, 1975 respondent court issued a decision
dismissing the petition for lack of merit. The court a quo
agreed with the opinion of the National Police Commission
that resignations submitted by members of the police force in
compliance with the provisions of Letter of Instruction No. 14
are valid. Since petitioner has been separated from the
service, reinstatement is not the proper remedy. The court
also said that the evidence of conflicting entries on petitioner's
two information sheets have not been denied or rebutted,
hence the preponderance of evidence is against the petitioner
that he is not a high school graduate, as he could not have
graduated in two high schools, one in the University of Manila
during the school year 1954-55 and the other at the Pana-on
Academy during the school year 1950-51. Lastly, the trial
court ruled that since all petitioner's appointment were
provisional, he can be removed at any time by the appointing
power, Mayor Maglana.
On appeal to the Court of Appeals, petitioner filed his brief on
June 28, 1976. For failure of respondents to submit their brief,
the case was submitted for decision on November 16, 1976.
Petitioner made the following assignment of errors:
FIRST ERROR
THE LOWER COURT ERRED IN HOLDING THAT THE
RESIGNATION OF PETITIONER FROM THE POSITION
OF POLICE SERGEANT OF THE SAN FRANCISCO
( A p p o i n t m e n t ) | 14
 POLICE FORCE AND THE ACCEPTANCE OF SUCH
RESIGNATION BY RESPONDENT MAYOR MAGLANA
DURING THE PENDENCY OF A CRIMINAL CASE FILED
AGAINST PETITIONER AND WHILE PETITIONER WAS
UNDER PREVENTIVE SUSPENSION ARE LEGAL AND
VALID;
SECOND ERROR
THE TRIAL COURT ERRED IN HOLDING THAT
PETITIONER CAN BE REMOVED FROM THE OFFICE AT
ANY TIME BY RESPONDENT MAYOR MAGLANA;
THIRD ERROR
THE LOWER COURT ERRED IN RULING THAT
RESPONDENT MAYOR COULD NOT BE COMPELLED
TO REINSTATE AND/OR REAPPOINT PETITIONER
WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS
PATROLMAN AND WITH POLICE TRAINING AT THE
POLCOM ACADEMY; and
FOURTH ERROR
THE COURT BELOW ERRED IN DISMISSING THIS
CASE AND DISALLOWING PETITIONER TO COLLECT
HIS BACK SALARIES AND TRAVELING EXPENSES.
Petitioner contends that under Presidential Decree No. 12-A
promulgated on October 4, 1972 the power to dismiss or
remove a member of the police force has been transferred
from the Mayor to the Police Commission. Hence, the
acceptance of petitioner's resignation by respondent Mayor on
January 19, 1973 is null and void because the latter is no
longer clothed with authority to dismiss or remove a member
of the police force on said date. Furthermore, petitioner
stresses that Letter of Instruction No. 14 under whose
provisions he was made to resign is not applicable to him as
said Instruction covers only officials and employees with
pending cases excluding policemen. Lastly, petitioner banks
on his testimonial eligibility which he obtained on October 10,
1974 to justify his reappointment.
Presidential Decree No. 12 dated October 3, 1972 created the
Adjudication and Investigation Boards in the Police
Commission to review and dispose of all administrative cases
of city and municipal forces referred to the Commission. On
October 4, 1972 Presidential Decree 12-A was promulgated
providing for the procedure to be followed in case an
administrative charge is filed against any member of the local
police agency or when a member of the police force is accused
in court of any felony or violation of law. Nowhere in the
provisions of said Presidential Decrees show that the power
to dismiss or remove has been transferred from the Mayor to
the Police Commission as contended by petitioner. It was only
on August 8, 1974 when such power was removed from the
Mayor pursuant to 'Presidential Decree No. 531 integrating
the municipal police forces in an the municipalities of the
province of Southern Leyte. Presidential Decree No. 531
states:
SEC. 6. Power of administrative control and
supervision. — Administrative control and
supervision over the several police and fire
departments and jails composing each of
the Integrated Police Forces herein
constituted shall, prior to the transfer
provided for in Section 7 hereof, remain
with the offices, agencies and officials in
which said power is vested in accordance
with existing laws; ... Accordingly,
administrative matters, such as
appointment promotion suspension
separation and other disciplinary action ...
and such other matters pertaining to
LAW ON PUBLIC OFFICERS
personnel administration which are
currently vested in and exercised by other
officials pursuant to existing laws, rules and
regulations shall remain with said officials,
...
SEC. 7. Administrative control and
supervision to be transferred to the
Philippine Constabulary. — After one year,
but not later than two years, from the
effectivity of this Decree, the power and
administrative control and supervision
provided for in Section 6 hereof shall be
taken over and exercised by the Philippine
Constabulary. ...
It is clear therefore that at the time petitioner's resignation
was approved by respondent Mayor on January 19, 1973 the
latter still had the power to dismiss or remove the former.
Petitioner did not dispute that at the time he was appointed
member of the Police Force of San Francisco, Southern Leyte,
he had neither qualified in an appropriate examination for the
position of policeman nor was he possessed with any civil
service eligibility for any position in the government. Such lack
of a civil service eligibility makes his appointment
temporary 1 and without a definite term and is dependent
entirely upon the pleasure of the appointing power. 2Although
indicated as provisional and approved under Section 24
(c) 3 of Republic Act 2260 the petitioner's appointment did rot
acquire the character of provisional appointment because of
his lack of appropriate civil service eligibility for the position
of municipal policeman. The Civil Service Commission cannot
even legally approve his appointment as provisional as this
act would constitute an unwarranted invasion of the discretion
of the appointing power. 4 If the approval of his appointment
as provisional under Section 24 (c) of Republic Act 2260 did
not make it so, the fact remains that his appointment was
temporary which could be terminated without any need to
show that the termination was for cause. 5
The fact that petitioner subsequently obtained a testimonial
eligibility on October 10, 1974 is of no moment. At the time
he received his appointment, as aforestated, petitioner had
no eligibility. As such what is required is a new appointment,
not merely reinstatement. But even then, he cannot compel
the Mayor to reappoint him for the power to appoint is in
essence discretionary and the appointing power enjoys
sufficient discretion to select and appoint employees on the
basis of their fitness to perform the duties and assume the
responsibilities of the position filled. 6
WHEREFORE, the decision dated February 4, 1975 of the
lower court is hereby affirmed. No costs.
SO ORDERED.
( A p p o i n t m e n t ) | 15
 [G.R. No. L-11602. April 21, 1958.]
ALFREDO CUADRA, Petitioner, v. TEOFISTO M.
CORDOVA, in his capacity as Mayor of Bacolod
City, Respondents.
Palanca & Torres for Appellant.
City Attorney Jesús S. Rodriguez for Appellee.
BAUTISTA ANGELO, J.:
This is a petition for mandamus filed before the Court of First
Instance of Negros Occidental seeking petitioner’s
reinstatement as a policeman of the City of Bacolod and the
payment of his back salaries from the date of his dismissal to
the date of his reinstatement. Respondent in his answer set
up the defense that petitioner has been removed from the
service in accordance with law.
The case was submitted on an agreed stipulation of facts.
Thereafter, the trial court rendered decision holding that the
appointment of petitioner was not in accordance with law and
so his dismissal was proper. It consequently dismissed the
petition. From this decision, petitioner appealed.
The important facts to be considered in this appeal are:
Petitioner was not a civil service eligible. He was temporarily
appointed as member of the police force of Bacolod City on
November 11, 1955. The position to which he was appointed
was a newly created one, the salary for which was included in
the budget for the fiscal year 1955-1956. This budget was
approved by the City Council on November 14, 1955, and by
the Secretary of Finance on January 18, 1956. Petitioner was
paid his salary for the service he had rendered from the date
of his appointment to the date of his removal. Petitioner is a
high school graduate and had been employed before the war
in the City Engineer’s Office of Bacolod City for about two
years and was later transferred to the Patrol Division of
Bacolod Police Department until the coming of the Japanese
in May, 1942. He was also employed as confidential agent of
former Mayor Amante and served in that capacity from 1953
to 1954. He was never accused of any crime nor were charges
filed against him before his dismissal.
In justifying the dismissal of petitioner from the service, the
trial court gave as its only reason the fact that he was already
47 years, 3 months and 13 days old when he was appointed
to the position of member of the police force of Bacolod City
and as such he was disqualified for such appointment in the
light of Section 17 of Executive Order No. 175, series of 1930,
which provides in part that "To be eligible for examination for
initial appointment, a candidate must be a citizen of the
Philippines, between the ages of twenty-one and thirty, of
good moral habits and conduct, without any criminal record,
and must not have been expelled or dishonorably discharged
from the civil or military employment." It is claimed by
appellant that such ruling is erroneous because such provision
of the Executive Order only applies to one who desires to take
a civil service examination and not to the appointment of one
who, like appellant, had already held several positions in the
government.
There is no merit in this claim. Section 17 above referred to
specifically provides that "To be eligible for examination for
initial appointment, a candidate must be a citizen of the
Philippines, between the ages of twenty-one and thirty",
which terms are clear enough to raise any doubt as to their
import. They refer to an examination for initial appointment,
LAW ON PUBLIC OFFICERS
and nothing else, as to which the age of the examinee must
be between 21 and 30. This interpretation appears more
justified when we consider Section 16 of the same Executive
Order which provides that "The Commission of Civil Service
shall announce from time to time the date and place of
examination to qualify for the police service, which shall be
held in accordance with the provisions of the Civil Service law
and Rules."cralaw virtua1aw library
But there is one argument which justifies the separation from
the service of petitioner and that refers to the fact that when
he was appointed he was not a civil service eligible and his
appointment was merely temporary in nature. His
appointment being temporary does not give him any definite
tenure of office but makes it dependent upon the pleasure of
the appointing power. A temporary appointment is similar to
one made in an acting capacity, the essence of which lies in
its temporary character and its terminability at pleasure by the
appointing power. And one who bears such an appointment
cannot complain if it is terminated at a moment’s notice.
Thus, in Villanosa, Et. Al. v. Alera, Et Al., G. R. No. L-10586,
May 29, 1957, we held:jgc:chanrobles.com.ph
". . . Since it is an admitted fact that the nature of the
appointments extended to petitioners was merely temporary,
the same cannot acquire the character of permanent simply
because the items occupied refer to permanent positions.
What characterizes an appointment is not the nature of the
item filled but the nature of the appointment extended. If
such were not the case, then there would never be temporary
appointments for permanent positions. This is absurd. The
appointments being temporary, the same have the character
of ‘acting appointments’ the essence of which is that they are
temporary in nature. Thus, in Austria v. Amante, 79 Phil., 780,
this Court stated:chanrob1es virtual 1aw library
‘Lastly, the appointment of petitioner by the President of the
Philippines was merely as Acting Mayor. It is elementary in
the law of public officers and in administrative practice that
such an appointment is merely temporary, good until another
permanent appointment is issued, either in favor of the
incumbent acting mayor or in favor of another. In the last
contingency, as in the case where the permanent
appointment fell to the lot of respondent, Jose L. Amante the
acting mayor must surrender the office to the lucky
appointee.’
Reiterating this doctrine this Court in Castro v. Solidum, G. R.
No. L-7750, June 30, 1955, declared:chanrob1es virtual 1aw
library
‘There is no dispute that petitioner has been merely
designated by the President as Acting Provincial Governor of
Romblon on September 11, 1953. Such being the case, his
appointment is merely temporary or good until another one is
appointed in his place. This happened when the President
appointed respondent Solidum on January 6, 1954 to take his
place.’
"It is, therefore, clear that the appointments of petitioners,
being temporary in nature, can he terminated at pleasure by
the appointing power, there being no need to show that the
termination is for cause (Mendez v. Ganzon, 101 Phil.,
48)."cralaw virtua1aw library
The decision appealed from is affirmed, without
pronouncement as to costs.
( A p p o i n t m e n t ) | 16
 [G.R. No. 127182. December 5, 2001]
HON. ALMA G. DE LEON, Chairman, HON. THELMA P.
GAMINDE, Commissioner, and HON. RAMON
P. ERENETA, JR., Commissioner, Civil Service
Commission, and SECRETARY RAFAEL
M. ALUNAN, III, Department of Interior and
Local Government, petitioners, vs. HON.
COURT OF APPEALS and JACOB F.
MONTESA, respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
For resolution is private respondents motion for
reconsideration of the January 22, 2001 Decision of the Court,
which reversed and set aside the Decision of the Court of
Appeals in CA-G.R. SP No. 38664 and reinstated Resolution
Nos. 953268 and 955201 of the Civil Service Commission.
In the Decision sought to be reconsidered, we ruled that
private respondents appointment on August 28, 1986, as
Ministry Legal Counsel - CESO IV of the Ministry of Local
Government, was temporary. Applying the case of Achacoso
v. Macaraig,[1] we held that since private respondent was not
a Career Executive Service (CES) eligible, his appointment did
not attain permanency because he did not possess the
required CES eligibility for the CES position to which he was
appointed. Hence, he can be transferred or reassigned
without violating his right to security of tenure.
It appears, however, that in Jacob Montesa v. Santos, et
al., decided on September 26, 1990,[2] where the nature of
private respondents appointment as Ministry Legal Counsel -
CESO IV, of the Ministry of Local Government, was first
contested, this Court issued a Minute Resolution dated March
17, 1992, holding that Achacoso v. Macaraig is not applicable
to the case of private respondent. The pertinent portion
thereof reads -
The holding of this Court in the Achacoso case is not
applicable to petitioner Montesa. Petitioner was appointed on
August 28, 1996 by virtue of Article III of the Freedom
Constitution. He was extended a permanent appointment by
then Minister Pimentel and subsequently confirmed as
permanent by the Civil Service Commission. He is a first grade
civil service eligible (RA 1080) the appropriate eligibility for
the position at that time and a member of the Philippine bar.
There was no Career Executive Service Board during the
Freedom Constitution or at the time of appointment of
petitioner. The CESO was only reconstituted by the
appointment of its Board of six (6) members sometime in
August 1988. There was no CESO eligibility examination
during petitioner's incumbency in the Department, as there
was no CESO board. The first CESO examination was given on
August 5 and 12, 1990. The CESO eligibility was not a
requirement at the time of the appointment of petitioner. The
only eligibility required is that of a first grader and petitioner
is a first grade eligible. Therefore, having met all the
requirements for the position to which he was appointed, he
cannot be removed in violation of the constitutional guarantee
on security of tenure and due process.
Invoking res judicata, private respondent contends that
the nature of his appointment can no longer be passed upon
and controverted in the present case considering that said
LAW ON PUBLIC OFFICERS
issue had already been settled in the foregoing Minute
Resolution of the Court.
Concededly, if we follow the conventional procedural
path, i.e., the principle on conclusiveness of judgment set
forth in Rule 39, Section 47, paragraph (c) of the Rules of
Court,[3] would bar a re-litigation of the nature of private
respondents appointment. Indeed, once an issue has been
adjudicated in a valid final judgment of a competent court, it
can no longer be contoverted anew and should be finally laid
to rest.[4]
Yet, the Court is not precluded from re-examining its
own ruling and rectifying errors of judgment if blind and
stubborn adherence to res judicata would involve the sacrifice
of justice to technicality. It must be stressed that this is not
the first time in Philippine and American jurisprudence that
the principle of res judicata has been set aside in favor of
substantial justice, which is after all the avowed purpose of all
law and jurisprudence.[5]
In the March 17, 1992 Minute Resolution, we held that
private respondent who was appointed in 1986 pursuant to
the Freedom Constitution, though not a CES eligible,
possessed all the requirements for the position of Ministry
Legal Counsel - CESO IV, of the Ministry of Local Government,
since a CES eligibility was not, at that time, a requirement for
the same position.
A reading, however, of the Integrated Reorganization
Plan which was adopted and declared part of the law of the
land by Presidential Decree No. 1, dated September 24, 1972,
clearly shows that a CES eligibility is indeed a requirement for
a position embraced in the CES. Thus:
c. Appointment. Appointment to appropriate classes in the
Career Executive Service shall be made by the President from
a list of career executive eligibles recommended by the
Board. Such appointments shall be made on the basis of rank;
provided that appointments to the higher ranks which qualify
the incumbents to assignments as undersecretary and heads
of bureaus and offices and equivalent positions shall be with
the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any
person who is not a Career Executive Service eligible; provided
that such appointee shall subsequently take the required
Career Executive Service examination and that he shall not be
promoted to a higher class until he qualifies in such
examination.
In fact, in March 1974, the CES Board issued CESB
Circular No. 1 which laid down the requirements for
membership in the CES, to wit:
a) Successful completion of CESDP shall constitute one of the
requirements for membership in the CES. Except as otherwise
provided by law, no person shall be admitted into the CES
without having satisfactorily completed the program;
b) Admission into CESDP shall be limited to incumbents of
positions falling within the CES duly nominated by their
Department Heads;
c) Upon satisfactory completion of the program, the
incumbent-participant shall be enrolled in the roster of CES
eligibles and shall be qualified for appointment by the
President to the appropriate rank in the CES upon
( A p p o i n t m e n t ) | 17
recommendation of the Board. He may then be assigned to
any position in the CES by the President.
The foregoing law and circular were never amended nor
repealed by the Freedom Constitution. A CES eligibility was an
existing and operative requirement at the time of private
respondents appointment as Ministry Legal Counsel - CESO
IV. Neither were the said law and circular inconsistent with
the Freedom Constitution as to render them modified or
superseded. In fact, the Integrated Reorganization Plan
allows the appointment of non-CES eligibles, like private
respondent, provided they subsequently acquire the needed
eligibility.
It bears stressing that in Achacoso v. Macaraig, the
questioned appointment was made on October 16, 1987,
before the CES Board was reconstituted in 1988, and before
the first CESO examination was given in 1990, as in the
present case. Nevertheless, the Court, in Achacoso, ruled that
a CES eligibility is required for a CES position, such that an
appointment of one who does not possess such eligibility shall
be temporary. Evidently, a CES eligibility has always been one
of the requirements for a position embraced in the CES. The
Court finds no reason to make an exception in the instant
controversy.
Moreover, in the recent case of Secretary of Justice v.
Josefina Bacal,[6] we ruled that security of tenure in the CES
is acquired with respect to rank and not to position. Hence,
assuming ex gratia argumenti that a CES eligibility is not a
requirement in the case of private respondent, the mobility
and flexibility concepts in the assignment of personnel in the
CES, which allow transfer or reassignment of CES personnel
to other positions of the same rank or salary, [7] justify his
transfer to other CES position without violating his right to
security of tenure.
WHEREFORE, in view of all the foregoing, the instant
motion for reconsideration is DENIED with FINALITY.
SO ORDERED.
LAW ON PUBLIC OFFICERS
[G.R. No. 138780. May 22, 2001]
NORBERTO ORCULLO, JR., petitioner, vs. CIVIL
SERVICE COMMISSION and COORDINATING
COUNCIL OF THE PHILIPPINE ASSISTANCE
PROGRAM, respondents.
DECISION
KAPUNAN, J.:
Petitioner Norberto A. Orcullo, Jr. was hired as Project
Manager IV by the Coordinating Council of the Philippine
Assistance Program (CCPAP)-BOT Center effective March 11,
1996. His employment was contractual and co-terminous with
the said project which was to end on January 30, 2000.[1] On
September 23, 1996 or six (6) months from his assumption to
office, petitioner received a Memorandum, dated September
20, 1996, from one Jorge M. Briones, Assistant Director of
CCPAP, terminating petitioner's contractual employment with
said agency effective September 30, 1996. [2]
In a Letter dated September 20, 1996, Undersecretary
Francisco F. del Rosario, Executive Director of CCPAP,
confirmed petitioner's termination as project manager of
CCPAP.
Aggrieved by his dismissal, petitioner appealed the same
to the Civil Service Commission (CSC).
On April 2, 1997, the respondent CSC issued Resolution
No. 972309 dismissing petitioner's appeal. The CSC found
that:
x x x the appointment of Orcullo is contractual and co-
terminous with the Philippine Assistance Program Support
Project and that it carries the stipulated condition "Unless
terminated sooner." The latter condition has not been
qualified by any safeguard. Appellant Orcullo, when he
accepted said contractual-coterminous appointment, was
aware that his services might be terminated anytime. He is,
thus, not protected by the security of tenure clause of the
Constitution. The contract is the law between the parties. And
whatever is stipulated therein governs the relationship
between the parties. Said stipulations in the contract may
include the mode or manner of separations. And the cause
therefore includes and is not proscribed to derogatory record,
misbehavior or incompetence or hostile attitudes. In the
instant case, appellant was separated from the service
particularly for unsatisfactory performance. (Underscoring
ours)
On the issue of the proper official who should effect such
termination, the next lower official of the Center may do so. In
this case, said separation was later validated by the
confirmation of the head office.[3]
Petitioner filed a motion for reconsideration of the above
resolution. On June 17, 1997, the CSC denied said motion in
its Resolution No. 973099.
On July 30, 1997, petitioner, through counsel, filed a
petition for review with the Court of Appeals.
On August 14, 1998, the Court of Appeals rendered a
decision, the dispositive portion of which reads as follows:
( A p p o i n t m e n t ) | 18
WHEREFORE, for lack of merit, the petition in the above
entitled case is hereby DISMISSED. Costs against petitioner.
SO ORDERED.[4]
Hence, this petition. Petitioner raises the sole issue of
whether employees in the public service, regardless of their
status of employment, are protected by the tenurial security
right embodied in the Constitution.
Petitioner argues that, contrary to the findings of the
CSC, the phrase "unless terminated sooner" refers not to the
duration of his employment, but the duration of the PAPS
support project itself. He claims that since the PAPS project
was still ongoing, his services cannot be terminated without
just cause and without the observance of due process. He
asseverates that even co-terminous employees like himself
enjoy security of tenure as embodied in the Constitution.
Petitioner's arguments are bereft of merit.
It is undisputed that petitioner's employment with
CCPAP is contractual and co-terminous in nature. Such a co-
terminous employment falls under the non-career service
classification of positions in the Civil Service:
Sec. 9. Non-Career Service. - The Non-Career Service shall be
characterized by (1) entrance on bases other than those of
the usual tests of merit and fitness utilized for the career
service; and (2) tenure which is limited to a period specified
by law, or which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to the
duration of a particular project for which purpose employment
was made. (Underscoring ours)
The Non-Career Service shall include:
xxx
(4) Contractual personnel or those whose employment in the
government is in accordance with a special contract to
undertake a specific work or job, requiring special or technical
skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall
exceed one year, and performs or accomplishes the specific
work or job, under his own responsibility with a minimum of
direction and supervision from the hiring agency.
xxx[5]
Additionally, Section 14 of the Omnibus Rules
Implementing Book V of Executive Order No. 292 provides:
Sec. 14. An appointment may also be co-terminous which
shall be issued to a person whose entrance and continuity in
the service is based on the trust and confidence of the
appointing authority or that which is subject to his pleasure,
or co-existent with his tenure, or limited by the duration of
project or subject to the availability of funds. (Underscoring
ours)
The co-terminous status may thus be classified as follows:
(1) Co-terminous with the project - when the appointment is
co-existent with the duration of a particular project for which
LAW ON PUBLIC OFFICERS
purpose employment was made or subject to the availability
of funds for the same;
(2) Co-terminous with the appointing authority - when
appointment is co-existent with the tenure of the appointing
authority or at his pleasure; (Underscoring ours)
(3) Co-terminous with the incumbent - when the appointment
is co-existent with the appointee, in that after the resignation,
separation or termination of the services of the incumbent the
position shall be deemed automatically abolished; and
(4) Co-terminous with a specific period - appointment is for a
specific period and upon expiration and upon thereof, the
position is deemed abolished.
A perusal of petitioners employment contract will reveal
that his employment with CCPAP is qualified by the phrase
unless terminated sooner. Thus, while such employment is co-
terminous with the PAPS project, petitioner nevertheless
serves at the pleasure of the appointing authority as this is
clearly stipulated in his employment contract. We agree with
the appellate courts intepretation of the phrase unless
terminated sooner to mean that his contractual job as Project
Manager IV from March 11, 1996 to January 30, 2000 could
end anytime before January 30, 2000 if terminated by the
other contracting party-employer CCPAP. We quote with
approval said courts ruling on the matter, thus:
xxx. The employment contract is written in plain and
unambiguous language. With petitioner's stature, he
could not have misunderstood it. Petitioner cannot now
renege from the stipulation invoking security of tenure
under the Constitution and the Civil Service Law. The
fact is he belongs to the non-career service whose
appointment is co-terminous, meaning his entrance and
continuity in the service is based on trust and confidence
of the appointing power.[6] (Underscoring ours)
Granting arguendo that said disputed phrase refers not
to the duration of petitioners employment, but to the project
itself, nevertheless, petitioner was validly terminated for
cause. The records will show that petitioner garnered an
unsatisfactory rating during the probationary period of his
employment.[7] After due notice, he was subsequently
dismissed because of his inability to work with the other staff
members of the project and to participate effectively in
meetings regarding the project, resulting in loss of trust in him
by his superiors. This much can be gleaned from the
Memorandum, dated September 20, 1996, sent by Mr. Briones
to the petitioner, which reads as follows:
This is to confirm my verbal advise to you made last 4
September 1996 regarding your unsatisfactory
performance during the probationary period of your
contractual employment with the CCPAP BOT Center.
As advised, your inability to work with the other staff in the
Center as well as participate in outside meetings are the main
reasons for the rating which have resulted in the loss of my
confidence in your ability to do your job as a
Manager. (Underscoring supplied)
xxx[8]
Finally, we find petitioner's claim that he was deprived
of due process unavailing. The Court of Appeals found that
( A p p o i n t m e n t ) | 19
petitioner was informed of his unsatisfactory performance in G.R. No. L-65439 November 13, 1985
his job as project manager about two weeks prior to his
PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner
termination. Thereafter, upon receipt of the memorandum
vs.
terminating his services, petitioner filed a complaint-appeal to
HON. INTERMEDIATE APPELLATE COURT, HON.
the CSC. When the CSC affirmed his dismissal in its
FILEM0N FERNANDEZ, JR., HON. ALBINA
Resolution, dated April 2, 1997, petitioner filed a motion for
MANALODANS as Commissioners of Civil Service
reconsideration thereof. Thus, he cannot now claim that he
Commission and HERNANI P. ESTEBAN, respondents.
was not given the opportunity to be heard.
Office of the Legal Officer for petitioner.
WHEREFORE, the instant petition for certiorari is hereby
DISMISSED for lack of merit.
GUTIERREZ, JR., J.:

SO ORDERED. The sole issue raised in this petition is the status of

respondent Hernani Esteban's appointment as Vice-President
for Administration of the Pamantasan ng Lungsod ng Maynila
that is, whether or not he holds the position in a permanent
capacity as to guarantee as security of tenure.
Respondent Esteban asserts that his appointment is
permanent whereas the petitioner maintains its temporary
and contractual nature such that the respondent may be
dismissed at any time even without cause.
Prior to his joining the Pamantasan, Dr. Esteban had been a
permanent employee in the government service for twenty
five (25) years. Until May 20, 1973, he was officially
connected with the Philippine College of Commerce, a state-
owned educational institution as its Vice-President for
Academic Affairs. Shortly before that date, the Board of
Trustees of the College in a bold move to streamline the
college organization resolve to abolish the position of Vice-
President for Academic Affairs. Private respondent was given
the option to continue teaching at the Philippine College of
Commerce which he accepted until his transfer to the
Pamantasan ng Lungsod ng Maynila, upon the invitation of its
president, Dr. Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially extended an ad
interim temporary appointment as Vice-President for
Administration by Dr. Consuelo Blanco. Dr. Esteban received
from the Secretary of Pamantasan a 'Notification of
Confirmation of Temporary Appointment' dated June 28,
1973. His appointment was 'effective May 21, 1973 until June
30, 1974, unless sooner terminated.' On July 5, 1974, the
Secretary of Pamantasan sent him a 'Notification of Renewal
of Temporary Appointment' indicating that his appointment
was renewed 'effective July 1, 1974 until August 31, 1974.'
A month later, on August 30, 1974, he received from the
University Secretary another 'notification of renewal of
temporary appointment' informing him that the Board of
Regents, on recommendation of the President of the
University approved the renewal of his appointment 'effective
September 1, 1974 until June 30, 1975' with an increased
salary of P17,160 per annum.
On October 15, 1974, incident to a further increase of his
salary, Dr. Esteban was notified that his appointment as vice-
president for administration at a salary of P17,600 per
annum had been renewed effective September 1, 1974 until
June 30, 1975.
On June 26, 1975, he received another 'Notification of
Renewal of Temporary Appointment' as Vice-President for
Administration with at salary of P21,760 per annum, 'effective
July 1, 1975 until June 30, 1976.'
On July 26, 1975, Dr. E qqqsteban discovered that he was not
included in the list of employees recommended for permanent
appointments. He wrote Dr. Consuelo Blanco requesting the
conversion of his temporary appointment to a permanent one,
considering his two and half (2½) years service.

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 20

On July 26, 1975, Dr. Esteban received an answer to his
request from President Blanco who indicated various reasons
for her not acting favorably on his request.
On August 1, 1975, Dr. Esteban received a 'Notification of Ad
Interim Appointment notifying him that the president of the
university had approved his appointment as Professor III with
a salary of P15,600 per annum 'effective August 1, 1975'. He
was further designated as Director of the Institute of
Continuing Education and Community Service with an
honorarium of P5,676 per annum, likewise effective August 1,
1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a
memorandum circular terminating Dr. Esteban's appointment
as Vice-President for Administration effective July 31, 1975.
His appointment dated June 26, 1975 and effective until June
30, 1976 had been withdrawn before it could be confirmed by
the Pamantasan Board of Regents.
On the same date, August 7, 1975, Dr. Esteban appealed to
the Civil Service Commission for the protection of his tenure
in the Pamantasan .
On October 9,1975, the Civil Service Commission ruled that:
The temporary nature of the appointment
issued to Dr. Esteban as Vice President for
Administration is conceded. Such being the
Case, his services may be terminated at any
time with or without request that he be
extended permanent appointment ,or that
his temporary appointment be converted
into permanent one, it may be stated that
the issuance of such appointment is
addressed to the sound discretion of the
appointing official.
Dr. Esteban flied a motion for the reconsideration of that
ruling. On January 14, 1976, the Civil Service Commission
ruled favorably on Dr. Esteban's motion. It stated that he was
fully qualified for the position of Vice-President for
Administration and certified him "for appointment therein
under permanent status." The Commission stated:
In view thereof, and in the absence of any
apparent justifiable reason why Dr. Esteban
should remian under temporary status for
the length of time prior to the withdrawal
of his appointment as Vice President for
Administration in that University, and as it
further appears that he is fully qualified for
the position in question in view of his
extensive experience in the fields of public
administration and management, this
Commission hereby certifies him for
appointment therein under permanent
status.
The Pamantasan, in turn, asked for the reconsideration of that
ruling.
The Commission, in an undated Resolution No. 75, Series of
1976, came out with a statement which confused more than
it clarified. It stated that its certification should not be
interpreted as directing the reinstatement of Dr. Esteban
because 'it was never intended to be so
On May 28, 1976 Esteban asked the commission to reconsider
Resolution No. 75, Series of 1976. He also asked for the
payment of the salaries and allowances due him as of
September 1975, which the Pamantasan had withheld. His
request was denied by the commission in its undated
resolution No. 158, Series of 1976.
LAW ON PUBLIC OFFICERS
On September 15, 1976 Esteban reiterated his request for
payment of his salaries.
On September 20, 1976, he asked for a review of the
Pamantasan's decision to terminate his appointment as Vice-
President for Administration.
On December 1, 1976, his request for payment of his salaries
was referred by the Commission to the treasurer of the
Pamantasan.
On July 6, 1977, the Commission again modified its earlier
resolution in as case. It ruled that Dr. Consuelo Blanco, had
no authority to extend to Dr. Esteban an ad
interim appointment as Vice President for Administration as
only the Board of Regents was empowered to do that under
Article 55 of the University Charter (Rep. Act 4196). However,
it ruled that, as a de facto officer, he was entitled to be paid
the salary of that position.
Dr. Esteban and the Pamantasan filed motions for
reconsideration of that ruling prompting the Commission to
order them to submit "all papers and documents pertinent to
that case."
On June 6, 1978, Presidential Decree No.1409 was issued
creating a Merits System Board in the Civil Service
Commission to hear and decide cases brought before it on
appeal by officers and employees who feel aggrieved by the
determination of officials on personnel matters.
The Board required the Pamantasan to submit its complete
records on the appointment and termination of Dr. Esteban
as vice-president for administration.
While the records officer of the Pamantasan submitted copies
of the notices sent to Esteban regarding his appointment as
vice-president for administration, he did not submit a copy of
the Board's Resolution No. 485 passed June 20, 1973
confirming the ad interim appointments of several academic
and non-academic personnel of said university among which
was that of Dr. Hernani Esteban "effective May 21, 1973." He
produced a copy of the memorandum circular dated August
7, 1915 of the President of the Pamantasan terminating Dr.
Esteban's service as of July 31, 1975.
In Resolution No. 597 dated November 11, 1980, the
Commissioner directed the Pamantasan to submit any
document or documents directly or actually showing that Dr.
Hernani Esteban was appointed vice-president for
administration of the Pamantasan in a permanent capacity.
On January 15, 1981, the Pamantasan by 2nd Indorsement,
despite the existence of Board Resolution No. 485, replied that
"we cannot find any document showing that Dr. Esteban was
appointed ... in a permanent capacity.
In view of the Pamantasan's failure to produce the minutes of
the regular Board of Regents meeting on June 20, 1973 when
Esteban's appointment was approved the Commission in its
Resolution No. 81-279 dated March 5, 1981, concluded that
there is truth to the claim of Dr. Esteban that his appointment
as Vice-President for Administration of the Pamantasan was
approved as permanent. It cited Government of the Philippine
Islands vs. Martinez, (44 Phil. 817) that when a party has it in
his possession or power to produce the best evidence of which
the case in its nature is susceptible and withholds it, the fair
presumption is that the evidence is withheld for some sinister
motive and that its production would thwart his evil or
fraudulent purpose.
The Commission ruled that "Dr. Hernani Esteban had been
appointed Vice-President for Administration of Pamantasan
with permanent status and that the temporary appointment
issued to him did not alter his permanent status as he had
'already acquired a vested right as well as the right to security
( A p p o i n t m e n t ) | 21
of tenure', that he cannot unceremoniously removed
therefrom, nor can the status of his appointment be changed
without cause, as provided by law and after due process." The
Commission held that the termination of his services was
obviously illegal. It directed his immediate reinstatement to
the position of Vice-President for Administration of
Pamantasan and the payment of his back salaries, allowances
and other benefits which he failed to receive from the time he
was separated therefrom.
The Pamantasan filed a motion for reconsideration of that
resolution. It also submitted for the first time a copy of
Resolution No. 485.
The Commission, in Resolution No. 71-510 dated April 23,
1981 chided the Pamantasan for having suppressed said piece
of evidence from which "the intention of, or the accurate
action taken by PLM Board of Regents on Dr. Esteban's
appointment in question, may be determined." Following the
decision of the Supreme Court in the case of Summers v.
Ozaeta, (81 Phil. 760), the Commission denied the
Pamantasan's motion for reconsideration and ruled that
"Upon confirmation of the Board of Regents of the ad
interim appointment of Dr. Esteban the same became
permanent."
Upon getting this ruling, the Pamantasan filed a petition
for certiorari against Dr. Esteban and Civil Service
Commissionssioners Filemon Fernandez, Jr. and Albina
Manalo Dans. The petition was docketed as Civil Case No.
139840 of the Court of First Instance of Manila, Branch XIII.
On January 8, 1982, the trial court rendered a decision
reversing the Commission's Resolution No. 81-279 and
adopted the earlier Commission Resolution dated July 6, 1977
holding that Private respondent Dr. Esteban's appointment
was invalid, though he may be considered as a de facto vice-
president of the University up to October 9, 1975, the date
when the Commission ruled that his appointment was
temporary and could be terminated at any time.
The private respondent appealed to the Intermediate
Appellate Court.
On September 26, 1983. the respondent Intermediate
Appellate Court rendered a decision reversing the trial court's
decision. The dispositive portion of the appellate decision
reads:
Wherefore, the appealed decision is hereby
revised and set aside. The Pamantasan's
petition for certiorari is denied. Resolution
No 81-279 dated March 5, 1981, as well as
Resolution No. 81-510 dated April 23, 1981,
of the respondent Civil Service Commission,
declaring as permanent the appointment of
the appellant Dr. Hernani Esteban as vice-
president for administration of the
university under the Board of Regents'
Resolution No. 485 dated June 20, 1973,
and ordering his immediate reinstatement
to that position with back salaries,
allowances and other benefits, is affirmed,
provided he has not yet reached the age of
compulsory retirement from the
government service; otherwise, he shall be
entitled to back salaries, allowances and
other benefits only up to the time he should
handle been reared from the said position.
From the decision of the Intermediate Appellate Court and
after its motion for reconsideration had been denied petitioner
Pamantasan ng Lungsod ng Maynila filed the present petition,
now the subject of this review.
LAW ON PUBLIC OFFICERS
We find no error in the pronouncements of the Intermediate
Appellate Court. We rule in favor of the respondents.
From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the situation.
Private respondent had been extended several "ad-interim"
appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the literal
translation of the word "ad interim" which creates such belief.
The term is defined by Black to mean "in the meantime" or
for the time being, Thus, an officer ad interim is one
appointed to fill a vacancy, or to discharge the duties of the
office during the absence or temporary incapacity of its
regular incumbent (Black's Law Dictionary, Revised Fourth
Edition, 1978). But such is not the meaning nor the use
intended in the context of Philippine law. In referring to Dr.
Esteban's appointments, the term is not descriptive of the
nature of the appointments given to him. Rather, it is used to
denote the manner in which said appointments were made,
that is, done by the President of the Pamantasan in the
meantime, while the Board of Regents, which is originally
vested by the University Charter with the power of
appointment, is unable to act. Thus, we held in Summers v.
Ozaeta (81 Phil. 760):
... an ad interim appointment is one made
in pursuance of paragraph (4), section 10,
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.' lt is an
appointment permanent in nature, and the
circumstance that it is subject to
confirmation by the Commission on
Appointments does not alter its permanent
character. An ad interim appointment is
disapproved certainly for a reason other
than that its provisional period has expired.
Said appointment is of course
distinguishable from an 'acting'
appointment which is merely temporary,
good until another permanent appointment
is issued.
Not only is the appointment in question an ad
interim appointment, but the same is also a confirmed ad
interimappointment. In its Resolution No. 485, dated June 20,
1973, the Pamantasan Board of Regents verified respondent
Esteban's appointment without condition nor limitation as to
tenure. As of that moment, it became a regular and
permanent appointment.
In other words, if the Board of Regents is in session, the
Pamantasan President merely nominates while the Board
issues the appointment. But when the Board is not in session,
the President is authorized to issue ad interimappointments.
Such appointments are permanent but their terms are only
until the Board disapproves them. If confirmed, the
appointee's term is converted into the regular term inherent
in the position.
Petitioner centers its arguments and tries to fix the attention
of the court to the fact that all notices of appointments,
renewals, and confirmation thereof all declare the same to be
temporary, carrying fixed commencement and termination
dates, "unless sooner terminated." As expressed by public
respondent, "... This stubborn insistence is anchored on the
notifications of temporary appointment sent to private
respondent Esteban by the Secretary of Pamantasan.
( A p p o i n t m e n t ) | 22
However, this insistence deliberately ignores ... Resolution intervention. However, when the law is violated or when there
No. 485 dated June 20, 1973 of the Board of Regents ...". And is grave abuse of discretion, we have to step in. Otherwise
correctly so argued. "In case of conflict between a notification the situation aptly described by newspaperman Jesus Bigornia
issued by the Secretary of the University which is supposed to would exist as he had written:
reflect the true content of a Board Resolution and the
... With the sword of Damocles hanging
Resolution itself of said Board of Regents of said University,
over the heads of faculty members, the
the latter is controlling for obvious reasons. The Secretary of
university has spawned a meek, spineless,
the University has no authority to alter or add something
even subservient corps of professors and
which is not provided for in the Resolution of the Board of
instructors. (Newsman's Notes, Bulletin
Regents ...". Thus, respondent Intermediate Appellate Court
Today, January 23, 1976).
held:
We cannot also sanction the termination of private
The permanent nature of appellant's
respondent's services by petitioner. With his appointment now
appointment was not altered or diminished
settled as permanent., the Civil Service law and the
by the misleading 'notifications' which were
Constitution guarantee private respondent's security of tenure
sent to him by the secretary of the
as 'No officer or employe in the Civil Service shall be
university president, referring to his
suspended or dismissed except for cause as provided by law"
appointment as 'temporary', nor by his
(Section 3, Article XII, the 1973 Philippine Constitution).
uninformed acceptance thereof without
Petitioner has failed to substantiate its allegations of
knowledge of the true contents of
incompetence against respondent Esteban whose record of
Resolution No. 485 which the university
government service appears quite impressive. Esteban was
president appears to have studiously
not dimissed for cause after proper proceedings. His
suppressed.
appointment was terminated on the ground that it was
There is nothing in the Pamantasan Board of Regents' temporary.
Resolution No. 485 which suggests that respondent Esteban's
The intermediate Appellate Court ordered the payment of full
appointment was temporary. The Board's action was to
back salaries to Dr. Esteban provided he has not reached the
confirm or reject an existing ad interimappointment. If
age of compulsory retirement from the government service.
respondent's appointment was intended to be temporary, it
should have been expressly stated. It cannot be made to rest It is not clear from the records as to when Dr. Esteban actually
on inconclusive evidence, specially because a temporary ceased working for Pamantasan. Under the law, he is entitled
appointment divests the temporary appointee of the to full pay, allowances, and other benefits during the period
constitutional security of tenure against removal without that he was actually reporting for work and rendering services
cause even if he is a civil service eligible." (Tolentino v. de in whatever capacity, whether teaching, research or
Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA administration. As of backwages, the amount is generally
1). based on the equivalent of three years' earnings (Philippine
Airlines, Inc. v. National Labor Relations Commission, 126
Further supporting private respondent's stand is the list of
SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor
permanent personnel which was submitted to the Commission
Relations Commission, 135 SCRA 697). In line with the policy
by the university president herself on March 3, 1975 for
adopted by this Court to do away with the attendant delay in
recognition of their permanent status by the Commission. The
awarding backwages because of the extended hearings
appellant's name was the first in that list (Exhibit 8-B). The
necessary to prove the earnings, elsewhere of each and every
permanent status of private respondent's appointment as
employee (Philippine Airlines, Inc. v. National Labor Relations
Vice-President for Administration at Pamantasan was
Commission, supra, citing Mercury Drug Co., Inc. v. Court of
recognized by the Civil Service Commission in its lst
Industrial Relations, 56 SCRA 694), the formula for computing
Indorsement dated April 18, 1975 upon the request of
the same calls for fixing the award of backwages to three
petitioner. This fact is borne out by the records and the
years. However, in Dy Keh Beng v. International Labor and
evidence and found as such by the Intermediate Appellate
Marine Union, 90 SCRA 162, citing Mercury Drug Co., et al. v.
Court, the Civil Service Commission as well as the Court of
Court of Industrial Relations, 56 SCRA 694, 712), we held the
First Instance.
amount of backwages to be "subject to deduction whre there
From the foregoing, there appears an intention to deprive are mitigating circumstances in favor of the employer, but
private respondent of his rights as a permanent appointee. subject to increase whree there are aggravating
With strained relations and differences in professional opinion circumstances. (Tupas Local Chapter No. 979, et al. v.
between the private respondent and the Pamantasan National Labor Relations Commission, et al., G. R. No. 60532-
President, Dr. Esteban was led to believe that his services 33, November 5,\1985; Progressive Development Corporation
were terminable at pleasure. v. Progressive Employees' Union, 80 SCRA 434.) Considering
that in the case at bar, more than ten (10) years have elpased
The power to appoint is, in essence, discretionary. The
from the date respondent Esteban as to the true nature of his
appointing power has the right of choice which he may
appointment and "studiously suppressing" material data to
exercise freely according to his judgment, deciding for himself
effectively deprive the latter of his rights as a permanent
who is best qualified among those who have the necessary
employee, we find an award of five (5) years backpay to
qualifications and eligibilities. lt is a prerogative of the
respondent Dr. Esteban just and equitable under the
appointing power that may be availed of without liability,
circumstances, assuming he has not reached retirement age
provided however, that it is exercised in good faith for the
in the meantime.
advancement of the employer's interest and not for the
purpose of defeating or circumventing the rights of the WHEREFORE, the petition for review on certiorari is hereby
employees under special laws or under valid agreements, and DISMISSED for lack of merit. The decision appealed from is
provided further, that such prerogatives are not exercised in affirmed subject to the modification in the payment of back
a malicious, harsh, oppressive, vindictive or wanton manner, salaries as stated above.
or out of malice or spite (Government Service and Insurance
SO ORDERED.
System v. Ayroso 96 SCRA 213). The general rule is that the
power of appointment must remain unhampered by judicial

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 23

 G.R. No. 173264 February 22, 2008
CIVIL SERVICE COMMISSION, petitioner,
vs.
NITA P. JAVIER, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court, seeking to reverse the
Decision1 of the Court of Appeals (CA) dated September 29,
2005, as well as its Resolution of June 5, 2006, in CA-G.R. SP
No. 88568, which set aside the resolutions and orders of the
Civil Service Commission (CSC) invalidating the appointment
of respondent as Corporate Secretary of the Board of Trustees
of the Government Service and Insurance System (GSIS).
The facts are undisputed.
According to her service record,2 respondent was first
employed as Private Secretary in the GSIS, a government
owned and controlled corporation (GOCC), on February 23,
1960, on a "confidential" status. On July 1, 1962, respondent
was promoted to Tabulating Equipment Operator with
"permanent" status. The "permanent" status stayed with
respondent throughout her career. She spent her entire career
with GSIS, earning several more promotions, until on
December 16, 1986, she was appointed Corporate Secretary
of the Board of Trustees of the corporation.
On July 16, 2001, a month shy of her
64th birthday,3 respondent opted for early retirement and
received the corresponding monetary benefits.4
On April 3, 2002, GSIS President Winston F. Garcia, with the
approval of the Board of Trustees, reappointed respondent as
Corporate Secretary, the same position she left and retired
from barely a year earlier. Respondent was 64 years old at the
time of her reappointment.5 In its Resolution, the Board of
Trustees classified her appointment as "confidential in nature
and the tenure of office is at the pleasure of the Board."6
Petitioner alleges that respondent's reappointment on
confidential status was meant to illegally extend her service
and circumvent the laws on compulsory retirement. 7 This is
because under Republic Act (R.A.) No. 8291, or the
Government Service Insurance System Act of 1997, the
compulsory retirement age for government employees is 65
years, thus:
Sec. 13. x x x
(b) Unless the service is extended by appropriate
authorities, retirement shall be compulsory for an
employee at sixty-five (65) years of age with at least
fifteen (15) years of service: Provided, That if he has
less than fifteen (15) years of service, he may be
allowed to continue in the service in accordance with
existing civil service rules and regulations.
Under the civil service regulations, those who are in primarily
confidential positions may serve even beyond the age of 65
years. Rule XIII of the Revised Omnibus Rules on
Appointments and Other Personnel Actions, as amended,
provides that:
Sec. 12. (a) No person who has reached the
compulsory retirement age of 65 years can be
appointed to any position in the government, subject
only to the exception provided under sub-section (b)
hereof.
xxxx
LAW ON PUBLIC OFFICERS
b. A person who has already reached the compulsory
retirement age of 65 can still be appointed to a
coterminous/primarily confidential position in the
government.
A person appointed to a coterminous/primarily
confidential position who reaches the age of 65 is
considered automatically extended in the service
until the expiry date of his/her appointment or until
his/her services are earlier terminated.8
It is for these obvious reasons that respondent's appointment
was characterized as "confidential" by the GSIS.
On October 10, 2002, petitioner issued Resolution No.
021314, invalidating the reappointment of respondent as
Corporate Secretary, on the ground that the
position is a permanent, career position and not primarily
confidential.9
On November 2, 2002, the CSC, in a letter of even date,
through its Chairperson Karina Constantino-David, informed
GSIS of CSC's invalidation of respondent's appointment,
stating, thus:
Records show that Ms. Javier was formerly appointed
as Corporate Secretary in a "Permanent" capacity
until her retirement in July 16, 2001. The Plantilla of
Positions shows that said position is a career
position. However, she was re-employed as
Corporate Secretary, a position now declared as
confidential by the Board of Trustees pursuant to
Board Resolution No. 94 dated April 3, 2002.
Since the position was not declared primarily
confidential by the Civil Service Commission or by
any law, the appointment of Ms. Javier as Corporate
Secretary is hereby invalidated.10
Respondent and GSIS sought to reconsider the ruling of
petitioner. CSC replied that the position of Corporate Secretary
is a permanent (career) position, and not primarily confidential
(non-career); thus, it was wrong to appoint respondent to this
position since she no longer complies with eligibility
requirements for a permanent career status. More
importantly, as respondent by then has reached compulsory
retirement at age 65, respondent was no longer qualified for
a permanent career position.11 With the denial of respondent's
plea for reconsideration, she filed a Petition for Review with
the Court of Appeals.
On September 29, 2005, the CA rendered a Decision setting
aside the resolution of petitioner invalidating respondent's
appointment.12 The CA ruled that in determining whether a
position is primarily confidential or otherwise, the nature of its
functions, duties and responsibilities must be looked into, and
not just its formal classification.13 Examining the functions,
duties and responsibilities of the GSIS Corporate Secretary,
the CA concluded that indeed, such a position is primarily
confidential in nature.
Petitioner filed a motion for reconsideration, which was denied
by the CA on June 5, 2006.
Hence, herein petition.
The petition assails the CA Decision, contending that the
position of Corporate Secretary is a career position and not
primarily confidential in nature.14 Further, it adds that the
power to declare whether any position in government is
primarily confidential, highly technical or policy determining
rests solely in petitioner by virtue of its constitutional power
as the central personnel agency of the government.15
Respondent avers otherwise, maintaining that the position of
Corporate Secretary is confidential in nature and that it is
( A p p o i n t m e n t ) | 24
within the powers of the GSIS Board of Trustees to declare it
so.16 She argues that in determining the proper classification
of a position, one should be guided by the nature of the office
or position, and not by its formal designation.17
Thus, the Court is confronted with the following issues:
whether the courts may determine the proper classification of
a position in government; and whether the position of
corporate secretary in a GOCC is primarily confidential in
nature.
The Court's Ruling
The courts may determine the proper
classification of a position in government.
Under Executive Order No. 292, or the Administrative Code of
1987, civil service positions are currently classified into either
1) career service and 2) non-career service positions.18
Career positions are characterized by: (1) entrance based
on merit and fitness to be determined as far as
practicable by competitive examinations, or based
on highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security
of tenure.19
In addition, the Administrative Code, under its Book V, sub-
classifies career positions according to "appointment status,"
divided into: 1) permanent - which is issued to a person who
meets all the requirements for the positions to which he is
being appointed, including the appropriate eligibility
prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof; and
2) temporary - which is issued, in the absence of appropriate
eligibles and when it becomes necessary in the public interest
to fill a vacancy, to a person who meets all the requirements
for the position to which he is being appointed except the
appropriate civil service eligibility; provided, that such
temporary appointment shall not exceed twelve months, and
the appointee may be replaced sooner if a qualified civil
service eligible becomes available.20
Positions that do not fall under the career service are
considered non-career positions, which are characterized by:
(1) entrance on bases other than those of the usual
tests of merit and fitness utilized for the career service;
and (2) tenure which is limited to a period specified by
law, or which is co-terminous with that of the appointing
authority or subject to his pleasure, or which is limited
to the duration of a particular project for which purpose
employment was made.21
Examples of positions in the non-career service enumerated
in the Administrative Code are:
Sec. 9. Non-Career Service. - x x x
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential
staff;
(2) Secretaries and other officials of Cabinet rank
who hold their positions at the pleasure of the
President and their personal or confidential staff(s);
(3) Chairman and members of commissions and
boards with fixed terms of office and their personal
or confidential staff;
(4) Contractual personnel or those whose
employment in the government is in accordance with
a special contract to undertake a specific work or job,
requiring special or technical skills not available in
the employing agency, to be accomplished within a
specific period, which in no case shall exceed one
year, and performs or accomplishes the specific work
LAW ON PUBLIC OFFICERS
or job, under his own responsibility with a minimum
of direction and supervision from the hiring agency;
and
(5) Emergency and seasonal personnel. (Emphasis
supplied)
A strict reading of the law reveals that primarily confidential
positions fall under the non-career service. It is also clear that,
unlike career positions, primarily confidential and other non-
career positions do not have security of tenure. The tenure of
a confidential employee is co-terminous with that of the
appointing authority, or is at the latter's pleasure. However,
the confidential employee may be appointed or remain in the
position even beyond the compulsory retirement age of 65
years.22
Stated differently, the instant petition raises the question of
whether the position of corporate secretary in a GOCC,
currently classified by the CSC as belonging to the permanent,
career service, should be classified as primarily
confidential, i.e., belonging to the non-career service. The
current GSIS Board holds the affirmative view, which is
ardently opposed by petitioner. Petitioner maintains that it
alone can classify government positions, and that the
determination it made earlier, classifying the position of GOCC
corporate secretary as a permanent, career position, should
be maintained.
At present, there is no law enacted by the legislature that
defines or sets definite criteria for determining primarily
confidential positions in the civil service. Neither is there a law
that gives an enumeration of positions classified as primarily
confidential.
What is available is only petitioner's own classification of civil
service positions, as well as jurisprudence which describe or
give examples of confidential positions in government.
Thus, the corollary issue arises: should the Court be bound by
a classification of a position as confidential already made by
an agency or branch of government?
Jurisprudence establishes that the Court is not bound by the
classification of positions in the civil service made by the
legislative or executive branches, or even by a constitutional
body like the petitioner.23 The Court is expected to make its
own determination as to the nature of a particular position,
such as whether it is a primarily confidential position or not,
without being bound by prior classifications made by other
bodies.24 The findings of the other branches of government
are merely considered initial and not conclusive to the
Court.25 Moreover, it is well-established that in case the
findings of various agencies of government, such as the
petitioner and the CA in the instant case, are in conflict, the
Court must exercise its constitutional role as final arbiter of all
justiciable controversies and disputes.26
Piñero v. Hechanova,27 interpreting R.A. No. 2260, or the Civil
Service Act of 1959, emphasized how the legislature refrained
from declaring which positions in the bureaucracy are
primarily confidential, policy determining or highly technical in
nature, and declared that such a determination is better left
to the judgment of the courts. The Court, with the ponencia of
Justice J.B.L. Reyes, expounded, thus:
The change from the original wording of the bill
(expressly declared by law x x x to be policy
determining, etc.) to that finally approved and
enacted ("or which are policy determining, etc. in
nature") came about because of the
observations of Senator Tañada, that as
originally worded the proposed bill gave
Congress power to declare by fiat of law a
certain position as primarily confidential or
( A p p o i n t m e n t ) | 25
 policy determining, which should not be the
case. The Senator urged that since the Constitution
speaks of positions which are "primarily confidential,
policy determining or highly technical in nature," it
is not within the power of Congress to declare
what positions are primarily confidential or
policy determining. "It is the nature alone of
the position that determines whether it is
policy determining or primarily
confidential."Hence, the Senator further observed,
the matter should be left to the "proper
implementation of the laws, depending upon the
nature of the position to be filled", and if the position
is "highly confidential" then the President and the
Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, "But in
positions that involved both confidential
matters and matters which are routine, x x x
who is going to determine whether it is
primarily confidential?" Senator Tañada
replied:
"SENATOR TAÑADA: Well. at the first
instance, it is the appointing power
that determines that: the nature of
the position. In case of conflict then it
is the Court that determines whether
the position is primarily confidential
or not.
"I remember a case that has been decided
by the Supreme Court involving the position
of a district engineer in Baguio, and there.
precisely, the nature of the position was in
issue. It was the Supreme Court that
passed upon the nature of the position, and
held that the President could not transfer
the district engineer in Baguio against his
consent."
Senator Tañada, therefore, proposed an amendment
to section 5 of the bill, deleting the words "to be" and
inserting in lieu thereof the words "Positions which
are by their nature" policy determining, etc., and
deleting the last words "in nature". Subsequently,
Senator Padilla presented an amendment to the
Tañada amendment by adopting the very words of
the Constitution, i.e., "those which are policy
determining, primarily confidential and highly
technical in nature". The Padilla amendment was
adopted, and it was this last wording with which
section 5 was passed and was enacted (Senate
Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-681).
It is plain that, at least since the enactment of the
1959 Civil Service Act (R. A. 2260), it is the nature
of the position which finally determines
whether a position is primarily confidential,
policy determining or highly
technical. Executive pronouncements can be
no more than initial determinations that are
not conclusive in case of conflict. And it must be
so, or else it would then lie within the discretion of
title Chief Executive to deny to any officer, by
executive fiat, the protection of section 4, Article XII,
of the Constitution.28(Emphasis and underscoring
supplied)
This doctrine in Piñero was reiterated in several succeeding
cases.29
Presently, it is still the rule that executive and legislative
identification or classification of primarily confidential, policy-
LAW ON PUBLIC OFFICERS
determining or highly technical positions in government is no
more than mere declarations, and does not foreclose judicial
review, especially in the event of conflict. Far from what is
merely declared by executive or legislative fiat, it is the nature
of the position which finally determines whether it is primarily
confidential, policy determining or highly technical, and no
department in government is better qualified to make such an
ultimate finding than the judicial branch.
Judicial review was also extended to determinations made by
petitioner. In Griño v. Civil Service Commission,30 the Court
held:
The fact that the position of respondent Arandela as
provincial attorney has already been classified as one
under the career service and certified as permanent
by the Civil Service Commission cannot conceal or
alter its highly confidential nature. As
in Cadiente where the position of the city legal
officer was duly attested as permanent by the Civil
Service Commission before this Court declared that
the same was primarily confidential, this Court holds
that the position of respondent Arandela as the
provincial attorney of Iloilo is also a primarily
confidential position. To rule otherwise would be
tantamount to classifying two positions with the
same nature and functions in two incompatible
categories.31
The framers of the 1987 Constitution were of the same
disposition. Section 2 (2) Article IX (B) of the Constitution
provides that:
Appointments in the civil service shall be made only
according to merit and fitness to be determined, as
far as practicable, and, except to positions which are
policy-determining, primarily confidential, or highly
technical, by competitive examination.
The phrase "in nature" after the phrase "policy-determining,
primarily confidential, or highly technical" was deleted from
the 1987 Constitution.32 However, the intent to lay in the
courts the power to determine the nature of a position is
evident in the following deliberation:
MR. FOZ. Which department of government has the
power or authority to determine whether a position
is policy-determining or primarily confidential or
highly technical?
FR. BERNAS: The initial decision is made by the
legislative body or by the executive
department, but the final decision is done by
the court. The Supreme Court has constantly
held that whether or not a position is policy-
determining, primarily confidential or highly
technical, it is determined not by the title but
by the nature of the task that is entrusted to
it. For instance, we might have a case where a
position is created requiring that the holder of that
position should be a member of the Bar and the law
classifies this position as highly technical. However,
the Supreme Court has said before that a position
which requires mere membership in the Bar is not a
highly technical position. Since the term 'highly
technical' means something beyond the ordinary
requirements of the profession, it is always a
question of fact.
MR. FOZ. Does not Commissioner Bernas agree that
the general rule should be that the merit system or
the competitive system should be upheld?
( A p p o i n t m e n t ) | 26
 FR. BERNAS. I agree that that it should be the
general rule; that is why we are putting this as an
exception.
MR. FOZ. The declaration that certain positions are
policy-determining, primarily confidential or highly
technical has been the source of practices which
amount to the spoils system.
FR. BERNAS. The Supreme Court has always said
that, but if the law of the administrative
agency says that a position is primarily
confidential when in fact it is not, we can
always challenge that in court. It is not
enough that the law calls it primarily
confidential to make it such; it is the nature of
the duties which makes a position primarily
confidential.
MR. FOZ. The effect of a declaration that a position
is policy-determining, primarily confidential or highly
technical - as an exception - is to take it away from
the usual rules and provisions of the Civil Service Law
and to place it in a class by itself so that it can avail
itself of certain privileges not available to the
ordinary run of government employees and officers.
FR. BERNAS. As I have already said, this
classification does not do away with the requirement
of merit and fitness. All it says is that there are
certain positions which should not be determined by
competitive examination.
For instance, I have just mentioned a position in the
Atomic Energy Commission. Shall we require a
physicist to undergo a competitive examination
before appointment? Or a confidential secretary or
any position in policy-determining administrative
bodies, for that matter? There are other ways of
determining merit and fitness than competitive
examination. This is not a denial of the requirement
of merit and fitness.33 (Emphasis supplied)
This explicit intent of the framers was recognized in Civil
Service Commission v. Salas,34 and Philippine Amusement and
Gaming Corporation v. Rilloraza,35 which leave no doubt that
the question of whether the position of Corporate Secretary
of GSIS is confidential in nature may be determined by the
Court.
The position of corporate secretary in a government
owned
and controlled corporation, currently classified as a
permanent
career position, is primarily confidential in nature.
First, there is a need to examine how the term
"primarily confidential in nature" is described in
jurisprudence. According to Salas,36
Prior to the passage of the x x x Civil Service Act of
1959 (R.A. No. 2260), there were two recognized
instances when a position may be considered
primarily confidential: Firstly, when the President,
upon recommendation of the Commissioner of Civil
Service, has declared the position to be primarily
confidential; and, secondly in the absence of such
declaration, when by the nature of the functions of
the office there exists "close intimacy" between the
appointee and appointing power which insures
freedom of intercourse without embarrassment or
freedom from misgivings of betrayals of personal
trust or confidential matters of state.37(Emphasis
supplied)
LAW ON PUBLIC OFFICERS
However, Salas declared that since the enactment of R.A. No.
2260 and Piñero,38 it is the nature of the position which finally
determines whether a position is primarily confidential or not,
without regard to existing executive or legislative
pronouncements either way, since the latter will not bind the
courts in case of conflict.
A position that is primarily confidential in nature is defined as
early as 1950 in De los Santos v. Mallare,39 through
the ponencia of Justice Pedro Tuason, to wit:
x x x These positions (policy-determining, primarily
confidential and highly technical positions), involve
the highest degree of confidence, or are closely
bound up with and dependent on other positions to
which they are subordinate, or are temporary in
nature. It may truly be said that the good of the
service itself demands that appointments coming
under this category be terminable at the will of the
officer that makes them.
xxxx
Every appointment implies confidence, but
much more than ordinary confidence is
reposed in the occupant of a position that is
primarily confidential. The latter phrase
denotes not only confidence in the aptitude of
the appointee for the duties of the office but
primarily close intimacy which insures
freedom of [discussion, delegation and
reporting] without embarrassment or
freedom from misgivings of betrayals of
personal trust or confidential matters of state.
x x x40 (Emphasis supplied)
Since the definition in De los Santos came out, it has guided
numerous other cases.41 Thus, it still stands that a position is
primarily confidential when by the nature of the functions of
the office there exists "close intimacy" between the appointee
and appointing power which insures freedom of intercourse
without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of state.
In classifying a position as primarily confidential, its functions
must not be routinary, ordinary and day to day in
character.42 A position is not necessarily confidential though
the one in office may sometimes handle confidential matters
or documents.43 Only ordinary confidence is required for all
positions in the bureaucracy. But, as held in De los
Santos,[44] for someone holding a primarily confidential
position, more than ordinary confidence is required.
In Ingles v. Mutuc,45 the Court, through Chief Justice Roberto
Concepcion as ponente, stated:
Indeed, physicians handle confidential matters.
Judges, fiscals and court stenographers generally
handle matters of similar nature. The Presiding and
Associate Justices of the Court of Appeals sometimes
investigate, by designation of the Supreme Court,
administrative complaints against judges of first
instance, which are confidential in nature. Officers of
the Department of Justice, likewise, investigate
charges against municipal judges. Assistant Solicitors
in the Office of the Solicitor General often investigate
malpractice charges against members of the Bar. All
of these are "confidential" matters, but such
fact does not warrant the conclusion that the
office or position of all government physicians
and all Judges, as well as the aforementioned
assistant solicitors and officers of the
Department of Justice
are primarilyconfidential in
character.46 (Emphasis supplied)
( A p p o i n t m e n t ) | 27
It is from De los Santos that the so-called "proximity rule" was
derived. A position is considered to be primarily confidential
when there is a primarily close intimacy between the
appointing authority and the appointee, which ensures the
highest degree of trust and unfettered communication and
discussion on the most confidential of matters. 47 This means
that where the position occupied is already remote from that
of the appointing authority, the element of trust between
them is no longer predominant.48 On further interpretation
in Griño, this was clarified to mean that a confidential nature
would be limited to those positions not separated from the
position of the appointing authority by an intervening public
officer, or series of public officers, in the bureaucratic
hierarchy.49
Consequently, brought upon by their remoteness to the
position of the appointing authority, the following were
declared by the Court to be not primarily confidential
positions: City Engineer;50 Assistant Secretary to the
Mayor;51members of the Customs Police Force or Port
Patrol;52 Special Assistant of the Governor of the Central Bank,
Export Department;53 Senior Executive Assistant, Clerk I and
Supervising Clerk I and Stenographer in the Office of the
President;54 Management and Audit Analyst I of the Finance
Ministry Intelligence Bureau;55 Provincial
Administrator;56 Internal Security Staff of the Philippine
Amusement and Gaming Corporation (PAGCOR);57 Casino
Operations Manager;58 and Slot Machine Attendant.59 All
positions were declared to be not primarily confidential
despite having been previously declared such either by their
respective appointing authorities or the legislature.
The following were declared in jurisprudence to be primarily
confidential positions: Chief Legal Counsel of the Philippine
National Bank;60 Confidential Agent of the Office of the
Auditor, GSIS;61 Secretary of
the SangguniangBayan; Secretary
62 to the City
Mayor;63 Senior Security and Security Guard in the Office of
the Vice Mayor;64Secretary to the Board of a government
corporation;65 City Legal Counsel, City Legal Officer or City
Attorney;66Provincial Attorney;67 Private Secretary;68 and
Board Secretary II of the Philippine State College of
Aeronautics.69
In fine, a primarily confidential position is characterized by the
close proximity of the positions of the appointer and appointee
as well as the high degree of trust and confidence inherent in
their relationship.
Ineluctably therefore, the position of Corporate Secretary of
GSIS, or any GOCC, for that matter, is a primarily confidential
position. The position is clearly in close proximity and intimacy
with the appointing power. It also calls for the highest degree
of confidence between the appointer and appointee.
In classifying the position of Corporate Secretary of GSIS as
primarily
confidential, the Court took into consideration the proximity
rule together with the duties of the corporate secretary,
enumerated as follows:70
1. Performs all duties, and exercises the power, as
defined and enumerated in Section 4, Title IX, P.D.
No. 1146;
2. Undertakes research into past Board resolutions,
policies, decisions, directives and other Board action,
and relate these to present matters under Board
consideration;
3. Analyzes and evaluates the impact, effects and
relevance of matters under Board consideration on
existing Board policies and provide the individual
LAW ON PUBLIC OFFICERS
Board members with these information so as to
guide or enlighten them in their Board decision;
4. Records, documents and reproduces in sufficient
number all proceedings of Board meetings and
disseminate relevant Board decisions/information to
those units concerned;
5. Coordinates with all functional areas and units
concerned and monitors the manner of
implementation of approved Board resolutions,
policies and directives;
6. Maintains a permanent, complete, systematic and
secure compilation of all previous minutes of Board
meetings, together with all their supporting
documents;
7. Attends, testifies and produces in Court or in
administrative bodies duly certified copies of Board
resolutions, whenever required;
8. Undertakes the necessary physical preparations
for scheduled Board meetings;
9. Pays honoraria of the members of the Board who
attend Board meetings;
10. Takes custody of the corporate seal and
safeguards against unauthorized use; and
11. Performs such other functions as the Board may
direct and/or require.
The nature of the duties and functions attached to the position
points to its highly confidential character.71 The secretary
reports directly to the board of directors, without an
intervening officer in between them.72 In such an
arrangement, the board expects from the secretary nothing
less than the highest degree of honesty, integrity and loyalty,
which is crucial to maintaining between them "freedom of
intercourse without embarrassment or freedom from
misgivings or betrayals of personal trust or confidential
matters of state."73
The responsibilities of the corporate secretary are not merely
clerical or routinary in nature. The work involves constant
exposure to sensitive policy matters and confidential
deliberations that are not always open to the public, as
unscrupulous persons may use them to harm the corporation.
Board members must have the highest confidence in the
secretary to ensure that their honest sentiments are always
and fully expressed, in the interest of the corporation. In this
respect, the nature of the corporate secretary's work is akin
to that of a personal secretary of a public official, a position
long recognized to be primarily confidential in nature.74 The
only distinction is that the corporate secretary is secretary to
the entire board, composed of a number of persons, but who
essentially act as one body, while the private secretary works
for only one person. However, the degree of confidence
involved is essentially the same.
Not only do the tasks listed point to sensitive and confidential
acts that the corporate secretary must perform, they also
include "such other functions as the Board may direct and/or
require," a clear indication of a closely intimate relationship
that exists between the secretary and the board. In such a
highly acquainted relation, great trust and confidence
between appointer and appointee is required.
The loss of such trust or confidence could easily result in the
board's termination of the secretary's services and ending of
his term. This is understandably justified, as the board could
not be expected to function freely with a suspicious officer in
its midst. It is for these same reasons that jurisprudence, as
earlier cited, has consistently characterized personal or private
( A p p o i n t m e n t ) | 28
secretaries, and board secretaries, as positions of a primarily
confidential nature.75
The CA did not err in declaring that the position of Corporate
Secretary of GSIS is primarily confidential in nature and does
not belong to the career service.
The Court is aware that this decision has repercussions on the
tenure of other corporate secretaries in various GOCCs. The
officers likely assumed their positions on permanent career
status, expecting protection for their tenure and
appointments, but are now re-classified as primarily
confidential appointees. Such concern is unfounded, however,
since the statutes themselves do not classify the position of
corporate secretary as permanent and career in nature.
Moreover, there is no absolute guarantee that it will not be
classified as confidential when a dispute arises. As earlier
stated, the Court, by legal tradition, has the power to make a
final determination as to which positions in government are
primarily confidential or otherwise. In the light of the instant
controversy, the Court's view is that the greater public interest
is served if the position of a corporate secretary is classified
as primarily confidential in nature.
Moreover, it is a basic tenet in the country's constitutional
system that "public office is a public trust,"76 and that there is
no vested right in public office, nor an absolute right to hold
office.77 No proprietary title attaches to a public office, as
public service is not a property right.78 Excepting
constitutional offices which provide for special
immunity as regards salary and tenure, no one can be
said to have any vested right in an office. 79 The rule is
that offices in government, except those created by the
constitution, may be abolished, altered, or created anytime by
statute.80 And any issues on the classification for a position in
government may be brought to and determined by the
courts.81
WHEREFORE, premises considered, the Petition is DENIED.
The Decision of the Court of Appeals dated September 29,
2005, in CA-G.R. SP No. 88568, as well as its Resolution of
June 5, 2006 are hereby AFFIRMED in toto.
No costs.
SO ORDERED.
LAW ON PUBLIC OFFICERS
A.M. No. 98-5-01-SC November 9, 1998
In Re Appointments dated March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as
Judges of the Regional Trial Court of Branch 62, Bago
City and of Branch 24, Cabananatuan City,
respectively.
NARVASA, C.J.:
The question presented for resolution in the administrative
matter at bar is whether, during the period of the ban on
appointments imposed by Section 15, Article VII of the,
Constitution, the President is nonetheless required to fill
vacancies in the judiciary, in view of Sections 4(1) and 9 of
Article VIII. A corollary question is whether he can make
appointments to the judiciary during the period of the ban in
the interest of public service.
Resolution of the issues is needful; it will preclude a
recurrence of any conflict in the matter of nominations and
appointments to the Judiciary — as that here involved —
between the Chief Executive, on the one hand, and on the
other, the Supreme Court and the Juducial and Bar Council
over which the Court exercises general supervision and wields
specific powers including the assignment to it of other
functions and duties in addition to its principal one of
recommending appointees to the Judiciary, and the
determination of its Members emoluments.1
I. The Relevant Facts
The Resolution of the Court En Banc, handed down on May
14, 1998, sets out the relevant facts and is for that reason
hereunder reproduced in full.
Referred to the Court En Banc by the Chief Justice are
the appointments signed by His Excellency the
President under date of March 30, 1998 of Hon. Mateo
A. Valenzuela and Hon. Placido B. Vallarta as Judges
of the Regional Trial Court of Branch 62, Bago City and
of Branch 24, Cabanatuan City, respectively. The
appointments were received at the Chief Justice's
chambers on May 12, 1998. The referral was made in
view of the serious constitutional issue concerning said
appointments arising from the pertinent antecedents.
The issue was first ventilated at the meeting of the
Judicial and Bar Council on March 9, 1998. The
meeting had been called, according to the Chief
Justice as Ex Officio Chairman, to discuss the question
raised by some sectors about the "constitutionality
of ** appointments" to the Court of Appeals,
specifically, in light of the forthcoming presidential
elections. Attention was drawn to Section 15, Article
VII of the Constitution reading as follows:
Sec. 15. Two months immediately
before the next presidential elections
and up to the end of his, term, a
President or Acting President shall not
make appointments, except temporary
appointments to executive positions
when continued vacancies therein will
prejudice public service or endanger
public safety.
On the other hand, appointments to fill vacancies in
the Supreme Court during the period mentioned in the
provision just quoted could seemingly be justified by
another provision of the same Constitution Section 4
(1) of Article VIII which states:
Sec. 4 (1) The Supreme
Court shall be composed
( A p p o i n t m e n t ) | 29
 of a Chief Justice and
fourteen Associate
Justices. ** **. Any
vacancy shall be filled
within ninety days from
the occurrence thereof.
Also pertinent although not specifically discussed is
Section 9 of the same Article VIII which provides that
for the lower courts, the President shall issue the
appointments — from a list of at least three nominees
prepared by the Council for every vacancy — within
ninety days from the submission of the list.
The view was then expressed by Senior Associate
Justice Florenz D. Regalado, Consultant of the Council,
who had been a member of the Committee of the
Executive Department and of the Committee on the
Judicial Department of the 1986 Constitutional
Commission, that on the basis of the commission's
records, the election ban had no application to
appointments to the Court of Appeals. Without any
extended discussion or any prior research and study
on the part of the other Members of the JBC, this
hypothesis was accepted, and was then submitted to
the President for consideration, together with the
Council's nominations for eight (8) vacancies in the
Court of Appeals.
On April 6, 1998 the Chief Justice received an official
communication from the Executive Secretary
transmitting the appointments of eight (8) Associate
Justices of the Court of Appeals all of which had been
duly signed on March 11, 1998 by His Excellency the
President. In view of the fact that all the appointments
had been sign on March 11, 1998 — the day
immediately before the commencement of the ban on
appointments imposed by Section 15, Article VII of the
Constitution — who impliedly but no less clearly
indicated that the President's Office did not agree with
the hypothesis that appointments to the Judiciary
were not covered by said ban, the Chief Justice
resolved to defer consideration of nominations for the
vacancy in the Supreme Court created by the
retirement of Associate Justice Ricardo J. Francisco,
specially considering that the Court had scheduled
sessions in Baquio City in April, 1998, that the
legislature's representatives to the JBC were occupied
with the forthcoming elections, and that a member of
the Council was going on a trip out of the country.
On May 4, 1998, the Chief Justice received a letter
from the President, addressed to the JBC, requesting
transmission of the "list of final nominees" for the
vacancy "no later than Wednesday, May 6, 1998" in
view of the duty imposed on him by the Constitution
"to fill up the vacancy ** within ninety (90) days from
February 13, 1998, the date the present vacancy
occurred.
On May 5, 1998, Secretary of Justice Silvestre Bello III
requested the Chief Justice for "guidance" respecting
the expressed desire of the "regular members" of the
JBC to hold a meeting immediately to fill up the
vacancy in the Court in line with the President's letter
of May 4. The Chief Justice advised Secretary Bello to
await the reply that he was drafting to the President's
communication, a copy of which he would give the
Secreatary the following day.
On May 6, 1998 the Chief Justice sent his reply to the
President. He began by stating that no sessions had
been scheduled for the Council until after the May
elections for the reason that apparently the President's
LAW ON PUBLIC OFFICERS
Office did not share the view posited by the JBC that
Section 15, Article VII of the Constitution had no
application to JBC-recommendend appointments —
the appointments to the Court of Appeals having been
all uniformly dated March 11, 1998, before the
commencement of the prohibition in said provision —
thus giving rise to the "need to undertake further
study of the matter," prescinding from "the-desire to
avoid any constitutional isssue regarding the
appointment to the mentioned vacancy" and the
further fact that "certain senior members of the Court
of Appeals ** (had) asked the Council to reopen the
question of their exclusion on account of age from
such (final) list." He closed with the assurance that the
JBC expected to deliberate on the nominations
"forthwith upon the completion of the coming
elections." The letter was delivered to Malacañang at
about 5 o'clock in the afternoon of May 6, 1998 and a
copy given to the Office of Justice Secretary Bello
shortly before that hour.
It would appear, however, that the Justice Secretary
and the regular members of the Council had already
taken action without awaiting the Chief Justice's
promised response to the President's letter of May 4,
1998. On that day, May 6, 1998, they met at some
undisclosed place, deliberated, and came to an
agreement on a resolution which they caused to be
reduced to writing and thereafter signed. In that two-
page Resolution they drew attention to Section 4 (1),
Article VIII of the Constitution (omitting any mention
of Section 15, Article VII) as well as to the President's
letter of May 4 in which he "emphatically requested
that the required list of final nominees be submitted
to him;" and pointing out that the "Council would be
remiss in its duties" should it fail to submit said
nominations, closed with an appeal that the Chief
Justice convene the Council for the purpose "on May
7, 1998, at 2:00 o'clock in the afternoon." This
Resolution they transmitted to the Chief Justice
together with their letter, also dated May 6, in which
they emphasized that "we are pressed for time" again
drawing attention to Section 4 (1). Article VIII of the
Constitution (and again omitting any reference to
Section 15, Article VII). They ended their letter with
the following intriguing paragraph:
Should the Chief Justice be not
disposed to call for the meeting
aforesaid, the undersigned
members constituting the majority
will be constrained to convene the
Council for the purpose of
complying with its Constitutional
mandate:
It seems evident, as just intimated, that the resolution
and the covering letter were deliberated on, prepared
and signed hours before delivery of the Chief Justice's
letter to the President and the Justice Secretary.
Since the Members of the Council appeared
determined to hold a meeting regardless of the Chief
Justice's wishes, the latter convoked the Council to a
meeting at 3 o'clock in the afternoon of May 7, 1998.
Present at the meeting were the Chief Justice,
Secretary Bello, ex officio member and the regular
members of the Council: Justice Regino Hermosisima.
Atty. Teresita Cruz Sison, Judge Cesar C. Peralejo. Also
present, on invitation of the Chief Justice, were
Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero,
Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug,
Vicente V. Mendoza, Artemio V. Panganiban, Antonio
( A p p o i n t m e n t ) | 30
 M. Martinez, Leonardo A. Quisumbing and Fidel P.
Purisima. The Chief Justice reviewed the events
leading to the session, and after discussion, the body
agreed to give the President time to answer the Chief
Justice's letter of May 6, 1998.
On May 7, 1998, the Chief Justice received a letter
from his Excellency the President in reply to his letter
of May 6 (which the President said had been "received
early this morning"). The President expressed the view
that "the election-ban provision (Article VII, Sec.
15) ** applies only to executive appointments or
appointments in the executive branch of government,"
the whole article being "entitled 'EXECUTIVE
DEPARTMENT."' He also observed that further proof
of his theory "is the fact that appointments to the
judiciary have special, specific provisions applicable to
them" (citing Article VIII, Sec, 4 (1) and Article VIII,
Section 9. In view thereof, he "firmly and respectfully
reiterate(d) ** (his) request for the Judicial and Bar
Council to transmit ** the final list of nominees for the
lone Supreme Court vacancy."
The Chief Justice replied to the letter the following
day, May 8, 1998. Since the Chief Justice's letter
explains the issue quite, plainly, it is here quoted in
full.
Thank you for your letter of May 7, 1998,
responding to my own communication of May
6, 1998 which, I would like to say reflects the
collective sentiments of my colleagues in the
Supreme Court. Knowing how busy you are, I
will deal straightaway with the points set out
in your letter.
The dating of the latest appointments to the
Court of Appeals was adverted to merely to
explain how we in the Court and the JBC came
to have the impression that you did not share
the view expressed in the JBC minutes of
March 9, 1998 that there is no election ban
with regard to the JBC appointments. Be this
as it may, the Court feels that there is a serious
question concerning the matter in light of the
seemingly inconsistent provision of the
Constitution. The first of these is Section 15,
Article VII, which reads:
Sec. 15. Two months immediately before the
next presidential elections and up to the end of
his term, a President or Acting President shall
not make appointments, except temporary
appointments to executive positions when
continued vacancies therein will prejudice
public service or endanger public safety.
The second is Section 4 (1) of Article VIII which states:
Sec. 4 (1) The Supreme Court shall be composed
of a Chief Justice and fourteen Associate
Justices. ** ** Any vacancy shall be filled within
ninety days from the occurrence thereof.
As you can see, Your Excellency, Section 15 of
Article VII imposes a direct prohibition on the
President: he "shall not make appointments"
within the period mentioned, and since there is no
specification of which appointments are
proscribed, the same may be considered as
applying to all appointments of any kind and
nature. This is the general rule then, the only
exception being only as regards "executive
LAW ON PUBLIC OFFICERS
positions" as to which "temporary appointments
may be made within the interdicted period "when
continued vacancies therein will prejudice public
service or endanger public safety." As the
exception makes reference only to "executive"
positions, it would seem that "judicial" positions
are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII,
requires that any vacancy in the Supreme Court
"shall be filled within ninety days from the
occurrence thereof." Unlike Section 15 Article VII,
the duty of filling the vacancy is not specifically
imposed on the President; hence, it may be
inferred that it is a duty shared by the Judicial and
Bar Council and the President.
Now, in view of the general prohibition in the first-
quoted provision, how is the requirement of filling
in the Court within ninety days to be construed?
One interpretation that immediately suggests itself
is that Section 4 (1), Article VIII is a general
provision while Section 15, Article VII is a particular
one; that is to say, normally, when there are no
presidential elections — which after all, occur only
every six years — Section 4 (1), Article VIII shall
apply: vacancies in the Supreme Court shall be
filled within 90 days; but when (as now) there are
presidential elections, the prohibition in Section 15,
Article VII comes into play: the President shall not
make any appointments. The reason for said
prohibition, according to Fr. J. Bernas, S.J., an
authority on Constitutional Law and himself a
member of the Constitutional Commission, is "(i)n
order not to tie the hands of the incoming
President through midnight appointments."
Another interpretation is that put forth in the
Minutes of the JBC meeting of March 9, 1998.
I must emphasize that the validity of any
appointment to the Supreme Court at this time
hinges on the correct interpretation of the
foregoing sections of the Constitution. On account
of the importance of the question, I consulted the
Court about it but, as I stated in my letter of May
6, 1998, "it declined to take any position, since
obviously there had not been enough time to
delivarate on the same ** (although it) did agree
that further study wass necessary **.
Since the question has actually come up, and its
importance cannot be gainsaid, and it is the Court
that is empowered under the Constitution to make
an authoritative interpretation of its (provisions) or
of those of any other law. I believe that the Court
may now perhaps consider the issue ripe for
determination and come to grips with it, to avoid
any possible polemics concerning the matter.
However the Court resolves the issue, no serious
prejudice will be done. Should the Court rule that
the President is indeed prohibited to make
appointments in a presidential election year, then
any appointment Attempted within the proscribed
period would be void anyway. If the Court should
adjudge that the ban has no application to
appointments to the Supreme Court, the JBC may
submit nominations and the President may make
the appointment forthwith upon such adjudgment.
The matter is a delicate one, quite obviously, and
must thus be dealt with with utmost
circumspection, to avoid any question regarding
the validity of an appointment to the Court at this
( A p p o i n t m e n t ) | 31
time, or any accusation of "midnight"
appointments or rash hasty action on the part of
the JBC or the President
In view thereof, and upon the advice and consent
of the Members of the Court, I am requesting the
regular Members of the Judicial Bar Council to
defer action on the matter until further device by
the Court. I earnestly make the same request of
you, Your Excellency. I assure you, however that
as befits a matter in which the Chief Executive has
evinced much interest, my colleagues and I will
give it preferential and expeditious attention and
consideration. To this end, I intend to convene the
Court by next week, at the latest.
On May 8, 1998, again on the insistence of the
regular Members of the JBC, another meeting was
held at which were present the Chief Justice, the
Secretary of Justice and the three regular,
Members above mentioned, as well as Justices
Hilario G. Davide, Jr., Flerida Ruth P. Romero,
Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug,
Santiago M. Kapunan, Vicente V. Mendoza,
Artemio V. Panganiban, Antonio M. Martinez,
Leonardo A. Quisumbing and Fidel P. Purisima. The
meeting closed with a resolution that "the
constitutional provisions ** (in question) be
referred to the Supreme Court En Bancfor
appropriate action, together with the request that
the Supreme Court consider that the ninety-day
period stated in Section 4 (1), Article VIII be
suspended or interrupted in view of the peculiar
circumstances. **.
On May 12, 1998, the Chief Justice received from
Malacañang the appointments of two (2) Judges of
the Regional Trial Court mentioned above. This
places on the Chief Justice the obligation of acting
thereon: i.e., transmitting the appointments to the
appointees so that they might take their oaths and
assume the duties of their office. The trouble is
that in doing so, the Chief Justice runs the risk of
acting in a manner inconsistent with the
Constitution, for these appointments appear prima
facie, at least, to be expressly prohibited by
Section 15, Article VII of the Charter. This
circumstance, and the referral of the constitutional
question to the Court in virtue of the Resolution of
May 8, 1998, supra operate to raise a justiciable
issue before the Court, an issue of sufficient
importance to warrant consideration and
adjudication on the merits.
Accordingly, the Court Resolved to (1) CONSIDER
the case at bar an administrative matter and cause
it to be appropriately docketed: (2) to DIRECT the
Clerk of Court to immediately serve copies of this
Resolution on (a) the Office of the President, (b)
the Office of the Solicitor General. (c) Hon. Mateo
A. Valenzuela, and (d) Hon. Placido B. Vallarta (at
their addresses recorded in the Judicial and Bar
Council); and (3) to REQUIRE the Office of the
President, the Office of the Solicitor General, Hon.
Mateo A. Valenzuela, and Hon. Placido B. Vallarta
to file their comments on this Resolution within
fifteen (15) days from notice thereof.
The Court further Resolved that (1) pending the
foregoing proceedings and the deliberation by the
Court on the matter, and until further orders, no
action be taken on the appointments of Hon.
Valenzuela and Hon. Vallarta which in the
LAW ON PUBLIC OFFICERS
meantime shall be held in abeyance and not given
any effect and said appointees shall refrain from
taking their oath of office; and that (2) exercising
its power of supervision over the Judicial and Bar
Council, said Council and its ex officio and regular
Members herein mentioned be INSTRUCTED, as
they are herby INSTRUCTED, to defer all action on
the matter of nominations to fill up the lone
vacancy in the Supreme Court or any other
vacancy until further orders.
SO ORDERED.
II The Relevant Pleadings
In compliance with the foregoing Resolution, the following
pleadings and other documents were filed; to wit:
1) the manifestation dated May 28, 1998 of Hon.
Mateo A.Valenzuela in compliance with the
Resolution of May 14, 1998;
2) the letter dated June 1, 1998 of Hon. Placido B.
Vallarta in compliance with the same Resolution;
3) the "Comments" of Hon. Valenzuela dated May
25, 1998;
4) his "Addendum to Comments" dated June 8,
1998;
5) his "Explanation" dated June 8, 1998;
6) the letter of Hon. Vallarta dated June 8, 1998;
7) his letter dated June 16, 1998;
8) the "Explanation" of Hon.Valenzuela dated July
17, 1998: and
9) the "Comment" of the Office of the Solicitor
General dated August 5, 1998.
A. Valenzuela's Assumption of Duty
as Judge on May 14, 1998
In his Manifestation dated May 28, 1998, Judge Valenzuela
alleged inter alia :
** that on May 14, 1998, he took his Oath of Office as
Judge, RTC Branch 62, Bago City, before Hon. Anastacio
C. Rufon, Judge RTC, Branch 52, Bacolod City, pursuant
to the Appointment dated March 30, 1998, (and) he also,
reported for duty as such before said RTC Branch 62, Bago
City ** (and that he did so) "faultless!y," ** without
knowledge of the on-going deliberations on the matter.
At that time, the originals of the appointments of Messrs.
Valenzuela and Vallarta, dated March 30, 1998 — addressed
to them "Thru: the Chief Justice, Supreme Court of the
Philippines, Manila, and which had been sent to and received
by the Chief Justice on May 12, 1998 2 — were still in the
latter's Office, and had not been transmitted to them precisely
because of the serious issue concerning the validily of their
appointments. Indeed, one of the directives in the Resolution
of May 14, 1998 was that "pending ** deliberatibn by the
Court on the matter, and until further orders, no action be
taken on the appointments ** which in the meantime shall be
held in abeyance and not given any effect **." For this
reason, by Resolution dated June 23, 1998, the Court required
Valenzuela to EXPLAIN by what authority he had taken his
oath on May 14, 1998 as Judge of Branch 62 of the RTC at
Bago City. In his "Explanation" dated July 17, 1998.
( A p p o i n t m e n t ) | 32
Valenzuela stated that he did so because on May 7, 1998 he
"received from Malacañang copy of his appointment **"
which contained the following direction: "By virtue hereof, you
may qualify and enter upon the performance of the duties of
the office **."
The Court then deliberated on the pleadings and documents
above mentioned, in relation to the facts and circumstances
on record and thereafter Resolved to promulgate the following
opinion.
III. The Relevant Constitutional Provisions
The provisons of the Constitution material to the inquiry at
bar read as follows: 3
Sec. 15, Article VII:
Two months immediately before the next
presidential elections and up to the end of
his term, a President or Acting President
shall not make appointments, except
temporary appointments to executive
positions when continued vacancies therein
will prejudice public service or endanger
public safety.
Sec. 4 (1), Article VIII :
The Supreme Court shall be composed of a
Chief Justice and fourteen Associate
Justices. It may sit en banc or in its
discretion, in divisions of three, five, or
seven Members. Any vacancy shall be filled
within ninety days from the occurrence
thereof.
Sec. 9, Article VIII :
The members of the Supreme Court and
judges in lower courts shall be appointed by
the President from a list of at least three
nominees prepared by the Judicial and Bar
Council for, every vacancy. Such
appointments need no confirmation.
For the lower courts, the President shall
issue the appointments within ninety days
from the submission of the list.
IV. The Court's View
The Court's view is that during the period stated in Section
15. Article VII of the Constitution — "(t)wo months
immediatey before the next presidential elections and up to
the end his term" — the President is neither required to make
appointments to the courts nor allowed to do so; and that
Sections 4(1) and 9 of Article VIII simply mean that the
President is required to fill vacancies in the courts within the
time frames provided therein unless prohibited by Section 15
of Article VII. It is not noteworthy that the prohibition on
appointments comes into effect only once every six years.
V Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have
an eleven-member Supreme Court. Commissioner Eulogio
Lerum wanted to increase the number of Justices to fifteen.
He also wished to ensure that that number would not be
reduced for any appreciable length of time (even only
temporarily), and to this end proposed that any vacancy.
"must be filled within two months from the date that the
vacancy occurs." His proposal to have a 15-member Court was
not initially adopted. Persisting however in his desire to make
certain that the size of the Court would not be decreased for
any substantial period as a result of vacancies, Lerum
proposed the insertion in the provision (anent the Court's
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membership) of the same mandate that "IN CASE OF ANY
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
MONTHS FROM OCCURRENCE THEREOF." He later agreed to
suggestions to make the period three, instead of two, months.
As thus amended, the proposal was approved. 4 As it turned
out; however, the Commission ultimately agreed on a fifteen-
member Court.5 Thus it was that the section fixing the
composition of the Supreme Court came to include a
command to fill up any vacancy therein within 90 days from
its occurrence.
In this connection, it may be pointed out that that instruction
that any "vacany shall be filled within ninety days" (in the last
sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition Section 15, Article VII, which is couched in
stronger negative language — that "a President or Acting
President shall not make appointments. . ."
The Commission later approved a proposal of Commissioner
Hilario G. Davide, Jr. (now a Member of this Court) to add to
what is now Section 9 of Article VIII, the following paragraph:
WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL
ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE
SUBMISSION OF THE LIST" (of nominees by the Judicial and
Bar Council to the President).6 Davide stated that his purpose
was to provide a "uniform rule" for lower courts. According to
him, the 90-day period should be counted from submission of
the list of nominees to the President in view of the possibility
that the President might reject the list submitted to him and
the JBC thus need more time to submit a new one. 7
On the other hand, Section 15, Article VII — which in effect
deprives the President of his appointing power "two months
immediately before the next presidential elections up to the
end of his term" — was approved without discussion.
VI. Analysis of Provisions
Now, it appears that Section 15, Article VI is directed against
two types of appointments: (1) those made for buying votes
and (2) those made for partisan considerations. The first
refers to those appointments made within the two months
preceding a Presidential election and are similar to those
which are declared elections offenses in the Omnibus Election
Code, viz.:8
Sec. 261. Prohibited Acts. — The following shall be
guilty of an election offense:
(a) Vote-buying and vote-selling. — (1) Any person
who gives, offer or promises money or anything of
value gives or promises any office or employment,
franchise or grant, public or private, or makes or
offers to make an expenditure, directly or
indirectly, or cause an expenditure to be made to
any person, association, corporation, entity, or
community in order to induce anyone or the public
in general to vote for or against any candidate or
withhold his vote in the election, or to vote for or
against any aspirant for the nomination or choice
of a candidate in a convention or similar selection
process of a political party.
xxx xxx xxx
(g) Appointment of new employees, creation of
new position, promotion, or giving salary
increases. — During the period of forty-five days
before a regular election and thirty days before a
regular election and thirty days before a special
election, (1) any head, official or appointing officer
of a government office, agency or instrumentality,
whether national or local, including government-
owned or controlled corporations, who appoints or
hires any new employee, whether provisional,
( A p p o i n t m e n t ) | 33
 temporary, or casual, or creates and fills any new
position, except upon prior authority of the
Commission. The Commission shall not grant the
authority sought unless, it is satisfied that the
position to be filled is essential to the proper
functioning of the office or agency concerned, and
that the position shall not be filled in a manner
that mayinfluence the election.
The second type of appointments prohibited by Section 15,
Article VII consist of the so-called "midnight" appointments.
In Aytona v. Castillo,9 it was held that after the proclamation
of Diosdado Macapagal as duly elected President, President
Carlos P. Garcia, who was defeated in his bid for reelection,
became no more than a "caretaker" administrator whose duty
was to "prepare for the transfer of authority to the incoming
President." Said the Court:
The filling 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
qualifications 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 fill
all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new
administration of an opportunity to make the
corresponding appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made
even after the proclamations of a new President. Such
appointments, so long as they are "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 qualifications,"10 can be made by the outgoing
President. Accordingly, several appointments made by
President Garcia, which were shown to have been well
considered, were upheld.11
Sec. 15, Article VII has a broader scope than the Aytona
ruling. It may not unreasonably be deemed to contemplate
not only "midnight" appointments — those made obviously for
partisan reasons as shown by their number and the time of
their making — but also appointments of the Presidential
election.
On the other hand, the exception in the same Section 15 of
Article VII — allowing appointments to be made during the
period of the ban therein provided — is much narrower than
that recognized in Aytona. The exception allows only the
making of temporary appointments to executive positions
when continued vacancies will prejudice public service or
endanger public safety. Obviously, the article greatly restricts
the appointing power of the President during the period of the
ban.
Considering the respectives reasons for the time frames for
filling vacancies in the courts and the restriction on the
President's power of appointments, it is this Court's view that,
as a general proposition, in case of conflict, the former should
yield to the latter. Surely, the prevention of vote-buying and
similar evils outweighs the need for avoiding delays in filling
up of court vacancies or the disposition of some cases.
Temporary vacancies can abide the period of the ban which,
incidentally and as earlier pointed out, comes to exist only
once in every six years. Moreover, those occurring in the lower
courts can be filled temporarily by designation. But prohibited
appointments are long-lasting and permanent in their effects.
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They may, as earlier pointed out, their making is considered
an election offense.
To the contention that may perhaps be asserted, that Sections
4 (1) and 9 of Article VIII should prevail over Section 15 of
Article VII, because they may be considered later expressions
of the people when they adopted the Constitution, it suffices
to point out that the Constitution must be construed in its
entirely as one, single instrument.
To be sure, instances may be conceived of the imperative
need for an appointment, during the period of the ban, not
only in the executive but also in the Supreme Court. This may
be the case should the membership of the Court be so
reduced that it will have no quorum, or should the voting on
a particularly important question requiring expeditious
resolution be evenly divided. Such a case, however, is covered
by neither Section 15 of Article VII nor Sections 4 (1) and 9
of Article VIII.12
VII. A Last Word
A final word, concerning Valenzuela's oath-taking and
"reporting for duty" as Presiding Judge of RTC Branch 62,
Bago City, on May 14, 1998.13 Standing practice is for the
originals of all apointments to the Judiciary — from the
highest to the lowest court — to be sent by the Office of the
President to the Office of the Chief Justice, the appointments
being addressed to the appointee's "Thru: the Chief Justice,
Supreme Court Manila." It is the Clerk of Court of the Supreme
Court in the Chief Justice's behalf, who thereafter advises the
individual appointee's of their appointments and also of the
date of commencement of the pre-requisite orientation
seminar to be conducted by the Philippine Judicial Academy
for new Judges. The rationale of this procedure is salutary and
readily precieved. The procedure ensures the authenticity of
the appointments, enables the Court, particularly the Office of
the Court Administrator, to enter in the appropriate records
all appointments to the Judiciary as well as other relevant data
such as the dates of qualification, the completion by the
appointee's of their pre-requisite orientation seminars, their
assumption of duty, etc.
The procedure also precludes the possibility, however remote
of Judges acting on spurious or otherwise defective
appointments. It is obviously not advisable, to say the least,
for a Judge to take his oath of office and enter upon the
performance of his duties on the basis alone of a document
purporting to be a copy of his appointment coming from
Malacañang, the authenticity of which has not been verified
from the latter or the Office of the Court Administrator; or
otherwise to begin performing his duties as Judge without the
Court Administrator knowing of that fact. The undesirability of
such a situation is illustrated by the case of Judge Valenzuela
who acted, with no little impatience or rashness, on a mere
copy of his supposed appointment without having received
any formal notice from this Court and without verifying the
authenticity of the appointment or the propriety of taking oath
on the basis thereof. Had he bothered to inquire about his
appointment from the Court Administrator's Office, he would
havebeen informed of the question concerning it and the
Court's injunction.
VIII. Conclusion
The appointments of Messrs. Valenzuela and Vallarta on
March 30, 1998 (transmitted to the Office of the Chief Justice
on May 14, 998) were unquestionably made during the period
of the ban. Consequently, they come within the operation of
the first prohibition relating to appointments which are
considered to be for the purpose of buying votes or
influencing the election. While the filling of vacancies in the
judiciary is undoubtedly in the public interest, there is no
showing in this case of any compelling reason to justify the
( A p p o i n t m e n t ) | 34
making of the appointments during the period of the ban. On
the other hand, as already discussed, there is a strong public
policy for the prohibition against appointments made within
the period of the ban.
In view of the foregoing considerations, the Court Resolved
to DECLARE VOID the appointments signed by His Excellency
the President under date of March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the
Regional Trial Court of Branch 62, Bago City and of Branch
24, Cabanatuan City, respectively and to order them,
forthwith on being served with notice of this decision, to
forthwith CEASE AND DESIST from discharging the office of
Judge of the Courts to which they were respectively appointed
on March 30, 1998. This without prejudice to their being
considered anew by the Judicial and Bar Council for re-
nomination to the same positons.
IT IS SO ORDERED.
LAW ON PUBLIC OFFICERS
PUBLIC INTEREST CENTER INC., LAUREANO T.
ANGELES, and JOCELYN P. CELESTINO,
VS.
MAGDANGAL B. ELMA
CHICO-NAZARIO, J.:
This is an original action for Certiorari,
Prohibition, and Mandamus, with a Prayer for Temporary
Restraining Order/Writ of Preliminary Injunction filed
on 30 June 1999.[1] This action seeks to declare as null
and void the concurrent appointments of
respondent Magdangal B. Elma as Chairman of the
Presidential Commission on Good Government (PCGG)
and as Chief Presidential Legal Counsel (CPLC) for being
contrary to Section 13,[2] Article VII and Section 7, par.
2,[3] Article IX-B of the 1987 Constitution. In addition,
the petitioners further seek the issuance of the
extraordinary writs of prohibition and mandamus, as well
as a temporary restraining order to enjoin respondent
Elma from holding and discharging the duties of both
positions and from receiving any salaries, compensation
or benefits from such positions during the pendency of
this petition.[4] Respondent Ronaldo Zamora was sued
in his official capacity as Executive Secretary.
On 30 October 1998, respondent Elma was
appointed and took his oath of office as Chairman of the
PCGG. Thereafter, on 11 January 1999, during his tenure as
PCGG Chairman, respondent Elma was appointed CPLC. He
took his oath of office as CPLC the following day, but he
waived any remuneration that he may receive as CPLC. [5]
Petitioners cited the case of Civil Liberties Union v.
Executive Secretary[6] to support their position that
respondent Elmas concurrent appointments as PCGG
Chairman and CPLC contravenes Section 13, Article VII and
Section 7, par. 2, Article IX-B of the 1987 Constitution.
Petitioners also maintained that respondent Elma was holding
incompatible offices.
Citing the Resolution[7] in Civil Liberties Union v.
Executive Secretary, respondents allege that the strict
prohibition against holding multiple positions provided under
Section 13, Article VII of the 1987 Constitution applies only to
heads of executive departments, their undersecretaries and
assistant secretaries; it does not cover other public officials
given the rank of Secretary, Undersecretary, or Assistant
Secretary.
Respondents claim that it is Section 7, par. 2, Article
IX-B of the 1987 Constitution that should be applied in their
case. This provision, according to the respondents, would
allow a public officer to hold multiple positions if (1) the law
allows the concurrent appointment of the said official; and (2)
the primary functions of either position allows such concurrent
appointment.Respondents also alleged that since there exists
a close relation between the two positions and there is no
incompatibility between them, the primary functions of either
position would allow respondent Elmas concurrent
appointments to both positions. Respondents further add that
the appointment of the CPLC among incumbent public officials
is an accepted practice.
( A p p o i n t m e n t ) | 35
 The resolution of this case had already been
overtaken by supervening events. In 2001, the appointees of
former President Joseph Estrada were replaced by the
appointees of the incumbent president,
Gloria Macapagal Arroyo. The present PCGG Chairman
is Camilo Sabio, while the position vacated by the last CPLC,
now Solicitor General Antonio Nachura, has not yet been
filled.There no longer exists an actual controversy that needs
to be resolved. However, this case raises a significant legal
question as yet unresolved - whether the PCGG Chairman can
concurrently hold the position of CPLC. The resolution of this
question requires the exercise of the Courts judicial power,
more specifically its exclusive and final authority to interpret
laws. Moreover, the likelihood that the same substantive issue
raised in this case will be raised again compels this Court to
resolve it.[8] The rule is that courts will decide a question
otherwise moot and academic if it is capable of repetition, yet
evading review.[9]
Supervening events, whether intended or accidental,
cannot prevent the Court from rendering a decision if there is
a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did
not hesitate to resolve the legal or constitutional issues raised
to formulate controlling principles to guide the bench, bar,
and public.[10]
The merits of this case may now be discussed.
The issue in this case is whether the position of
the PCGG Chairman or that of the CPLC falls under the
prohibition against multiple offices imposed by Section
13, Article VII and Section 7, par. 2, Article IX-B of the
1987 Constitution, which provide that:
Art. VII .
xxxx
Section 13. The President, Vice-President,
the Members of the Cabinet, and their
deputies or assistants shall not, unless
otherwise provided in this Constitution, hold
any other office or employment during their
tenure. x x x
Art. IX-B.
xxxx
Section 7. No elective official shall be
eligible for appointment or designation in
any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other office
or employment in the Government or any
subdivision, agency or instrumentality
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thereof, including government-owned or
controlled corporations or their subsidiaries.
To harmonize these two provisions, this Court, in the
case of Civil Liberties Union v. Executive
Secretary,[11] construed the prohibition against multiple
offices contained in Section 7, Article IX-B and Section 13,
Article VII in this manner:
[T]hus, while all other appointive officials in
the civil service are allowed to hold other
office or employment in the government
during their tenure when such is allowed by
law or by the primary functions of their
positions, members of the Cabinet, their
deputies and assistants may do so only
when expressly authorized by the
Constitution itself. In other words, Section
7, Article IX-B is meant to lay down the
general rule applicable to all elective and
appointive public officials and employees,
while Section 13, Article VII is meant to be
the exception applicable only to the
President, the Vice-President, Members of
the Cabinet, their deputies and assistants.
The general rule contained in Article IX-B of the 1987
Constitution permits an appointive official to hold more than
one office only if allowed by law or by the primary functions
of his position. In the case of Quimson v. Ozaeta,[12] this
Court ruled that, [t]here is no legal objection to a government
official occupying two government offices and performing the
functions of both as long as there is no incompatibility .
The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green[13] -
whether one office is subordinate to the other, in the sense
that one office has the right to interfere with the other.
[I]nc ompat ib il it y bet ween tw o off ices, is an
inc ons iste ncy in the f unct i ons of the t w o;
x x x Where one of fice is n ot sub ord inate to
the other, nor t he re lati on s of the one t o t he
othe r s uch as are inc ons is tent a nd
repugna nt, the re i s n ot tha t in compa tib il ity
fr om w hich the la w declare s that t he
acceptance of t he one is the vacati on of t he
othe r. T he f orce of t he w ord, i n its
applicat i on t o thi s ma tter i s, that f rom t he
nature an d re lati on s t o each other, of the t wo
place s, the y oug ht n ot t o be he ld b y the sa me
pers on, fr om the c ont rar iet y a nd a ntagoni sm
wh ich w oul d re su lt in the a ttempt by one
pers on t o fai th fu ll y and impa rt ial ly d ischa r ge
the d ut ies of one, t oward the i ncumbe nt of
the ot her. x x x The of f ices m ust
subord inate, one [ ove r] the othe r, a nd th ey
must, pe r se , ha ve t he ri ght to in ter fere, one
wit h t he othe r, bef ore the y a re i ncompa ti ble
at comm on la w. x x x
In t hi s case, a n inc ompat ibi l ity e xi st s
between t he p osi ti on s of the P CGG C hai r man and
the CP LC. The du ties of the CP LC inc lud e gi vi ng
independe nt an d impa rt ial legal ad vice on the
actions of the head s of var ious e xecut ive
department s and agenc ies and to rev iew
( A p p o i n t m e n t ) | 36
in vest igati o ns i nv o lv ing heads of e xecut ive
department s and agencie s, as wel l as othe r
Preside nt ial app o intees. T he PCG G is, w ith out
quest io n, an agenc y unde r t he E xecut ive
Department. Thu s, the act io ns of t h e PCGG
Chair man are su bject t o the rev ie w of the CPLC. I n
Memorand um O rder N o. 152, iss ued on 9 J ul y 2004,
the O ff ice o f the Pres iden t, in a n e ff o rt to prom ote
eff icienc y and ef fect ive c oo rd inat io n, clea rl y
delinea ted an d spec i fied the f unct i ons an d dut ies
of it s se ni or o f ficer s as suc h:
SECTION 1. The Chief Presidential Legal
Counsel (CPLC) shall advise and provide the
President with legal assistance on matters
requiring her action, including matters
pertaining to legislation.
The CPLC shall have the following duties and
functions:
a. Exercise administrative supervision over the
Office of the CPLC;
b. Review and/or draft legal orders referred to
her by the President on the following matters
that are subject of decisions of the President;
1. Executive Orders, proclamations,
administrative orders, memorandum
orders, and other legal documents
initiated by the President;
2. Decision on investigation
involving Cabinet Secretaries, agency
heads, or Presidential appointees with
the rank of Secretary conducted by the
Presidential Anti-Graft Commission
(PAGC);[14]
As CPLC, respondent Elma will be required to give his legal
opinion on his own actions as PCGG Chairman and review any
investigation conducted by the Presidential Anti-Graft
Commission, which may involve himself as PCGG
Chairman. In such cases, questions on his impartiality will
inevitably be raised. This is the situation that the law seeks to
avoid in imposing the prohibition against holding incompatible
offices.
Having thus ruled that Section 7, Article IX-B of the
1987 Constitution enjoins the concurrent appointments of
respondent Elma as PCGG Chairman and CPLC inasmuch as
they are incompatible offices, this Court will proceed to
determine whether such appointments violate the other
constitutional provision regarding multiple offices, Section 13,
Article VII of the 1987 Constitution.
While Section 7, Article IX-B of the 1987 Constitution
applies in general to all elective and appointive officials,
Section 13, Article VII, thereof applies in particular to Cabinet
secretaries, undersecretaries and assistant secretaries. In the
Resolution in Civil Liberties Union v. Executive
Secretary,[15] this Court already clarified the scope of the
prohibition provided in Section 13, Article VII of the 1987
Constitution. Citing the case of US v. Mouat[16], it specifically
identified the persons who are affected by this prohibition as
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secretaries, undersecretaries and assistant secretaries; and
categorically excluded public officers who merely have the
rank of secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor
General refers to the persons affected by the
constitutional prohibition. The persons cited in the
constitutional provision are the Members of the
Cabinet, their deputies and assistants. These terms
must be given their common and general
acceptation as referring to the heads of the
executive departments, their undersecretaries and
assistant secretaries. Public officials given the rank
equivalent to a Secretary, Undersecretary, or
Assistant Secretary are not covered by the
prohibition, nor is the Solicitor General affected
thereby. (Underscoring supplied.)
It is clear from the foregoing that the strict
prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor
to the CPLC, as neither of them is a secretary,
undersecretary, nor an assistant secretary, even if the
former may have the same rank as the latter positions.
It must be emphasized, however, that despite the
non-applicability of Section 13, Article VII of the 1987
Constitution to respondent Elma, he remains covered by the
general prohibition under Section 7, Article IX-B and his
appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his
appointments are hereby pronounced in violation of the
Constitution.
Granting that the prohibition under Section 13,
Article VII of the 1987 Constitution is applicable to the present
case, the defect in respondent Elmas concurrent
appointments to the incompatible offices of the PCGG
Chairman and the CPLC would even be magnified when seen
through the more stringent requirements imposed by the said
constitutional provision. In the aforecited case Civil Liberties
Union v. Executive Secretary,[17] the Court stressed that the
language of Section 13, Article VII is a definite and
unequivocal negation of the privilege of holding multiple
offices or employment. The Court cautiously allowed only two
exceptions to the rule against multiple offices: (1) those
provided for under the Constitution, such as Section 3, Article
VII, authorizing the Vice-President to become a member of
the Cabinet; or (2) posts occupied by the Executive officials
specified in Section 13, Article VII without additional
compensation in an ex-officio capacity as provided by law and
as required by the primary functions of said officials
office. The Court further qualified that additional duties must
not only be closely related to, but must be required by the
officials primary functions. Moreover, the additional post must
be exercised in an ex-officio capacity, which denotes an act
done in an official character, or as a consequence of office,
and without any other appointment or authority than that
conferred by the office.[18] Thus, it will not suffice that no
additional compensation shall be received by virtue of the
second appointment, it is mandatory that the second post is
required by the primary functions of the first appointment and
is exercised in an ex-officio capacity.
With its forgoing qualifications, it is evident that
even Section 13, Article VII does not sanction this dual
( A p p o i n t m e n t ) | 37
 appointment. Appointment to the position of PCGG
Chairman is not required by the primary functions of the
CPLC, and vice versa. The primary functions of the PCGG
Chairman involve the recovery of ill-gotten wealth
accumulated by former President Ferdinand E. Marcos,
his family and associates, the investigation of graft and
corruption cases assigned to him by the President, and
the adoption of measures to prevent the occurrence of
corruption.[19] On the other hand, the primary functions
of the CPLC encompass a different matter, that is, the
review and/or drafting of legal orders referred to him by
the President.[20] And while respondent Elma did not
receive additional compensation in connection with his
position as CPLC, he did not act as either CPLC or PGCC
Chairman in an ex-officio capacity. The fact that a
separate appointment had to be made for respondent
Elma to qualify as CPLC negates the premise that he is
acting in an ex-officio capacity.
In sum, t he pr oh ib iti on in Sect io n 13,
Art icle VII o f the 198 7 C o nst itu ti on d oes not app ly
to resp onden t E lma s ince nei ther th e PCGG
Chair man n or the CP LC is a Cab inet s ecretar y,
under secreta ry, o r ass ista nt secre tar y. E v en if th is
Cou rt as sumes, a rguen do , t hat Sect i on 1 3, Artic le
VII i s appl icable t o res po ndent E lm a, he s til l could
not be app oi nted c onc ur rent l y t o t he of fic es o f t he
PCGG C hairma n and CP LC becau se ne it h er off ice
was occ upied b y him i n a n ex -offic io capacity,
and the pr imar y f unct i ons of o ne o ff ice do n ot
requi re an app oin tment to t he othe r
post. Mo reo ver, even i f the app oi ntm ents in
quest io n are n ot c overed b y Secti on 13, A rtic le VII
of the 1987 Co nst itu ti on, sa id app oi ntm ents are
sti ll pr oh ib ited unde r Sec ti on 7, Ar tic le I X - B, wh ich
cove rs al l ap po int i ve an d e lect ive of fic ial s , due t o
the inc ompati bi lit y bet ween t he p rima ry f unct ions
of the of fice s o f the PCGG Chai rman and t he CPL C.
WHEREFORE, premises considered, this Court
partly GRANTS this petition and declares
respondent Magdangal B. Elmas concurrent appointments as
PCGG Chairman and CPLC as UNCONSTITUTIONAL. No costs.
SO ORDERED.
LAW ON PUBLIC OFFICERS
G.R. No. 200103 April 23, 2014
CIVIL SERVICE COMMISSION, Petitioner,
vs.
MARICELLE M. CORTES, Respondent.
DECISION
ABAD, J.:
This case concerns the validity of appointment by the
Commission En Banc where the appointee is the daughter of
one of the Commissioners.
The Facts and the Case
On February 19, 2008 the Commission En Banc of the
Commission on Human Rights (CHR) issued Resolution A
2008-19 approving the appointment to the position of
Information Officer V (IO V) of respondent Maricelle M.
Cortes. Commissioner Eligio P. Mallari, father of respondent
Cortes, abstained from voting and requested the CHR to
render an opinion on the legality of the respondent's
appointment.
In a Memorandum dated March 31, 2008, CHR Legal Division
Chief Atty. Efren Ephraim G. Lamorena rendered an opinion
that respondent Cortes' appointment is not covered by the
rule on nepotism because the appointing authority, the
Commission En Banc, has a personality distinct and separate
from its members. CHR Chairperson Purificacion C. Valera
Quisumbing, however, sent respondent a letter on the same
day instructing her not to assume her position because her
appointment is not yet complete.
On April 4, 2008 the Civil Service Commission-NCR (CSC-NCR)
Field Office informed Chairperson Quisumbing that it will
conduct an investigation on the appointment of respondent
Cortes.
On April 9, 2008 Velda E. Cornelio, Director II of the CSC-NCR
Field Office informed Chairperson Quisumbing that the
appointment of respondent Cortes is not valid because it is
covered by the rule on nepotism under Section 9 of the
Revised Omnibus Rules on Appointments and Other Personnel
Actions. According to the CSC-NCR, Commissioner Mallari is
considered an appointing authority with respect to respondent
Cortes despite being a mere member of the Commission En
Banc.
Respondent Cortes appealed the ruling of Director Cornelio
but the same was denied on September 30, 2008.
Consequently, respondent Cortes filed a petition for review on
November 24, 2008 before the CSC.
On March 2, 2010 the CSC issued Resolution 10-0370 where
it denied the petition and affirmed the nepotic character of
respondent Cortes’ appointment. Respondent Cortes filed a
Motion for Reconsideration but the same was denied in
Resolution 10-1396 dated July 12, 2010.
Consequently, in a letter dated August 10, 2010, CHR
Commissioner and Officer-in-Charge Ma. Victoria V. Cardona
terminated respondent’s services effective August 4, 2010.
On August 16, 2010, respondent Cortes filed a Petition for
Review with Prayer for Issuance of Temporary Restraining
Order and/or Writ of Preliminary Injunction with the Court of
Appeals (CA).
On August 11, 2011, the CA rendered its Decision granting the
petition and nullified Resolution 10-0370 dated March 2, 2010
and 10-1396 dated July 12, 2010. The CA also ordered that
Cortes be reinstated to her position as IO V in the CHR.
( A p p o i n t m e n t ) | 38
Petitioner filed a Motion for Reconsideration but the same was and SET ASIDE. The Resolution of the Civil Service
denied by the CA in a Resolution dated January 10, 2012. Commission dated March 2, 2010 affirming the CSC-NCR
Decision dated September 30, 2008 invalidating the
Hence, this petition.
appointment of respondent Maricelle M. Cortes for being
Issue of the Case nepotistic is hereby REINSTATED.
Whether or not the CA erred when it ruled that the SO ORDERED.
appointment of respondent Cortes as IO V in the CHR is not
covered by the prohibition against nepotism.
Ruling of the Court
The petition is impressed with merit.
Nepotism is defined as an appointment issued in favor of a
relative within the third civil degree of consanguinity or affinity
of any of the following: (1) appointing authority; (2)
recommending authority; (3) chief of the bureau or office; and
(4) person exercising immediate supervision over the
appointee.1 Here, it is undisputed that respondent Cortes is a
relative of Commissioner Mallari in the first degree of
consanguinity, as in fact Cortes is the daughter of
Commissioner Mallari.
By way of exception, the following shall not be covered by the
prohibition: (1) persons employed in a confidential capacity;
(2) teachers; (3) physicians; and (4) members of the Armed
Forces of the Philippines.2 In the present case, however, the
appointment of respondent Cortes as IO V in the CHR does
not fall to any of the exemptions provided by law.
In her defense, respondent Cortes merely raises the argument
that the appointing authority referred to in Section 59 of the
Administrative Code is the Commission En Banc and not the
individual Commissioners who compose it.
The purpose of Section 59 on the rule against nepotism is to
take out the discretion of the appointing and recommending
authority on the matter of appointing or recommending for
appointment a relative. The rule insures the objectivity of the
appointing or recommending official by preventing that
objectivity from being in fact tested. 3Clearly, the prohibition
against nepotism is intended to apply to natural persons. It is
one pernicious evil impeding the civil service and the efficiency
of its personnel.4
Moreover, basic rule in statutory construction is the legal
maxim that "we must interpret not by the letter that killeth,
but by the spirit that giveth life." To rule that the prohibition
applies only to the Commission, and not to the individual
members who compose it, will render the prohibition
meaningless. Apparently, the Commission En Banc, which is a
body created by fiction of law, can never have relatives to
speak of.
Indeed, it is absurd to declare that the prohibitive veil on
nepotism does not include appointments made by a group of
individuals acting as a body.1âwphi1 What cannot be done
directly cannot be done indirectly. This principle is elementary
and does not need explanation. Certainly, if acts that cannot
be legally done directly can be done indirectly, then all laws
would be illusory.
In the present case, respondent Cortes' appointment as IO V
in the CHR by the Commission En Banc, where his father is a
member, is covered by the prohibition. Commissioner Mallari's
abstention from voting did not cure the nepotistic character of
the appointment because the evil sought to be avoided by the
prohibition still exists. His mere presence during the
deliberation for the appointment of IO V created an
impression of influence and cast doubt on the impartiality and
neutrality of the Commission En Banc.
WHEREFORE, the instant petition is GRANTED. The Decision
dated August 11, 2011 and Resolution dated January 10, 2012
of the Court of Appeals in CA-G.R. SP 115380 are REVERSED

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 39

 [G.R. No. 135805. April 29, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO
O. DACOYCOY, respondent.
DECISION
PARDO, J.:
The case before us is an appeal via certiorari interposed
by the Civil Service Commission from a decision of the Court
of Appeals ruling that respondent Pedro O. Dacoycoy was not
guilty of nepotism and declaring null and void the Civil Service
Commissions resolution dismissing him from the service as
Vocational School Administrator, Balicuatro College of Arts
and Trade, Allen, Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a Citizens
Crime Watch Vice-President, Allen Chapter, Northern Samar,
filed with the Civil Service Commission, Quezon City, a
complaint against Pedro O. Dacoycoy, for habitual
drunkenness, misconduct and nepotism.[1]
After the fact-finding investigation, the Civil Service
Regional Office No. 8, Tacloban City, found a prima facie case
against respondent, and, on March 5, 1996, issued the
corresponding formal charge against him. [2] Accordingly, the
Civil Service Commission conducted a formal investigation,
and, on January 28, 1997, the Civil Service Commission
promulgated its resolution finding no substantial evidence to
support the charge of habitual drunkenness and
misconduct. However, the Civil Service Commission found
respondent Pedro O. Dacoycoy guilty of nepotism on two
counts as a result of the appointment of his two sons, Rito
and Ped Dacoycoy, as driver and utility worker, respectively,
and their assignment under his immediate supervision and
control as the Vocational School Administrator Balicuatro
College of Arts and Trades, and imposed on him the penalty
of dismissal from the service.[3]
On February 25, 1997, respondent Dacoycoy filed a
motion for reconsideration;[4] however, on May 20, 1997, the
Civil Service Commission denied the motion. [5]
On July 18, 1997, respondent Dacoycoy filed with the
Court of Appeals a special civil action for certiorari with
preliminary injunction [6] to set aside the Civil Service
Commissions resolutions.
On July 29, 1998, the Court of Appeals promulgated its
decision reversing and setting aside the decision of the Civil
Service Commission, ruling that respondent did not appoint or
recommend his two sons Rito and Ped, and, hence, was not
guilty of nepotism. The Court further held that it is the person
who recommends or appoints who should be sanctioned, as it
is he who performs the prohibited act.[7]
Hence, this appeal.
On November 17, 1998, we required respondent to
comment on the petition within ten (10) days from
notice.[8] On December 11, 1998, respondent filed his
comment
We give due course to the petition.
LAW ON PUBLIC OFFICERS
The basic issue raised is the scope of the ban on
nepotism.
We agree with the Civil Service Commission that
respondent Pedro O. Dacoycoy was guilty of nepotism and
correctly meted out the penalty of dismissal from the service.
The law defines nepotism[9] as follows:
Sec. 59. Nepotism. (1) All appointments to the national,
provincial, city and municipal governments or in any branch
or instrumentality thereof, including government owned or
controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the
bureau or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.
As used in this Section, the word relative and members of the
family referred to are those related within the third degree
either of consanguinity or of affinity.
(2) The following are exempted from the operations of the
rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of the
Armed Forces of the Philippines: Provided, however, That in
each particular instance full report of such appointment shall
be made to the Commission.
Under the definition of nepotism, one is guilty of
nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of any
of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over
the appointee.
Clearly, there are four situations covered. In the last two
mentioned situations, it is immaterial who the appointing or
recommending authority is. To constitute a violation of the
law, it suffices that an appointment is extended or issued in
favor of a relative within the third civil degree of consanguinity
or affinity of the chief of the bureau or office, or the person
exercising immediate supervision over the appointee.
Respondent Dacoycoy is the Vocational School
Administrator, Balicuatro College of Arts and Trades, Allen,
Northern Samar. It is true that he did not appoint or
recommend his two sons to the positions of driver and utility
worker in the Balicuatro College of Arts and Trades. In fact, it
was Mr. Jaime Daclag, Head of the Vocational Department of
the BCAT, who recommended the appointment of Rito. Mr.
Daclag's authority to recommend the appointment of first level
positions such as watchmen, security guards, drivers, utility
workers, and casuals and emergency laborers for short
durations of three to six months was recommended by
respondent Dacoycoy and approved by DECS Regional
Director Eladio C. Dioko, with the provision that such positions
shall be under Mr. Daclags immediate supervision. On July 1,
1992, Atty. Victorino B. Tirol II, Director III, DECS Regional
Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the
school. On January 3, 1993, Mr. Daclag also appointed Ped
( A p p o i n t m e n t ) | 40
Dacoycoy casual utility worker.However, it was respondent
Dacoycoy who certified that funds are available for the
proposed appointment of Rito Dacoycoy and even rated his
performance as very satisfactory. On the other hand, his son
Ped stated in his position description form that his father was
his next higher supervisor. The circumvention of the ban on
nepotism is quite obvious. Unquestionably, Mr. Daclag was a
subordinate of respondent Pedro O. Dacoycoy, who was the
school administrator. He authorized Mr. Daclag to recommend
the appointment of first level employees under his immediate
supervision. Then Mr. Daclag recommended the appointment
of respondents two sons and placed them under respondents
immediate supervision serving as driver and utility worker of
the school. Both positions are career positions.
To our mind, the unseen but obvious hand of respondent
Dacoycoy was behind the appointing or recommending
authority in the appointment of his two sons. Clearly, he is
guilty of nepotism.
At this point, we have necessarily to resolve the question
of the party adversely affected who may take an appeal from
an adverse decision of the appellate court in an administrative
civil service disciplinary case. There is no question that
respondent Dacoycoy may appeal to the Court of Appeals
from the decision of the Civil Service Commission adverse to
him.[10] He was the respondent official meted out the penalty
of dismissal from the service. On appeal to the Court of
Appeals, the court required the petitioner therein, here
respondent Dacoycoy, to implead the Civil Service
Commission as public respondent[11] as the government
agency tasked with the duty to enforce the constitutional and
statutory provisions on the civil service.[12]
prohibition applies only to original appointments to the civil
service, and whether the Commission had gravely abused its
discretion in recalling and disapproving the promotional
appointment given to petitioner after the Commission had
earlier approved that appointment. Debulgado never even
impliedly limited the coverage of the ban on nepotism to only
the appointing or recommending authority for appointing a
relative. Precisely, in Debulgado, the Court emphasized that
Section 59 means exactly what it says in plain and ordinary
language: x x x The public policy embodied in Section 59 is
clearly fundamental in importance, and the Court had neither
authority nor inclination to dilute that important public policy
by introducing a qualification here or a distinction there. [24]
Nepotism is one pernicious evil impeding the civil service
and the efficiency of its personnel. In Debulgado, we stressed
that [T]the basic purpose or objective of the prohibition
against nepotism also strongly indicates that the prohibition
was intended to be a comprehensive one. [25] The Court was
unwilling to restrict and limit the scope of the prohibition
which is textually very broad and comprehensive. [26] If not
within the exceptions, it is a form of corruption that must be
nipped in the bud or bated whenever or wherever it raises its
ugly head. As we said in an earlier case what we need now is
not only to punish the wrongdoers or reward the outstanding
civil servants, but also to plug the hidden gaps and potholes
of corruption as well as to insist on strict compliance with
existing legal procedures in order to abate any occasion for
graft or circumvention of the law.[27]
WHEREFORE, the Court hereby GRANTS the petition
and REVERSES the decision of the Court of Appeals in CA-G.R.
SP No. 44711.

Subsequently, the Court of Appeals reversed the ACCORDINGLY, the Court REVIVES and AFFIRMS the
decision of the Civil Service Commission and held respondent resolutions of the Civil Service Commission dated January 28,
not guilty of nepotism. Who now may appeal the decision of 1998 and September 30, 1998, dismissing respondent Pedro
the Court of Appeals to the Supreme Court? Certainly not the O. Dacoycoy from the service.
respondent, who was declared not guilty of the charge. Nor
the complainant George P. Suan, who was merely a witness No costs.
for the government.[13] Consequently, the Civil Service
Commission has become the party adversely affected by such
SO ORDERED.
ruling, which seriously prejudices the civil service
system. Hence, as an aggrieved party, it may appeal the
decision of the Court of Appeals to the Supreme Court. [14] By
this ruling, we now expressly abandon and overrule extant
jurisprudence that the phrase party adversely affected by the
decision refers to the government employee against whom the
administrative case is filed for the purpose of disciplinary
action which may take the form of suspension, demotion in
rank or salary, transfer, removal or dismissal from
office[15] and not included are cases where the penalty
imposed is suspension for not more then thirty (30) days or
fine in an amount not exceeding thirty days salary[16] or when
the respondent is exonerated of the charges, there is no
occasion for appeal.[17] In other words, we overrule prior
decisions holding that the Civil Service Law does not
contemplate a review of decisions exonerating officers or
employees from administrative charges enunciated in Paredes
v. Civil Service Commission;[18] Mendez v. Civil Service
Commission;[19] Magpale v. Civil Service
Commission;[20] Navarro v. Civil Service Commission and
Export Processing Zone Authority[21] and more recently Del
Castillo v. Civil Service Commission [22]

The Court of Appeals reliance on Debulgado vs. Civil

Service Commission,[23] to support its ruling is misplaced. The
issues in Debulgado are whether a promotional appointment
is covered by the prohibition against nepotism or the

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 41

 CHAVEZ VS. RONIDEL
GR 180941
NACHURA, J.:
Before this Court is a petition for review on certiorari under
Rule 45 of the Rules of Court, assailing the Court of Appeals
(CA) Decision[1] dated August 8, 2007 and its
Resolution[2] dated December 17, 2007 in CA-G.R. SP No.
89024.
The factual and procedural antecedents follow:
Respondent Lourdes R. Ronidel was an employee of the
Presidential Commission for the Urban Poor (PCUP),
occupying the position of Development Management Officer
(DMO) III. On May 25, 2000, she applied for promotion to one
of the two vacant positions of DMO V.
The minimum qualification standards for DMO V are:
Education: Masteral Degree
Experience: 4 years in position/s
management and supervision
Training: 24 hours of training in management and
supervision
Eligibility: Career Service (Professional)
Second level eligibility[3]
and at the time of her application, respondent possessed the
following qualifications:
promotional appointments in favor of Diaz and respondent,
respectively, to the two DMO V positions. Respondent took
her oath and assumed her new position on the date of her
appointment.[6]
Meanwhile, on February 19, 2001, petitioner Percival C.
Chavez was appointed as the new Chairperson and Chief
Executive Officer (CEO) of PCUP, succeeding
Gasgonia. However, petitioner took his oath and assumed
office only on February 26, 2001.[7] On March 9, 2001,
petitioner issued a Memorandum[8] to Ms. Susan Gapac
(Gapac) of the PCUP Human Resources Department (HRD)
instructing her to stop the processing of respondents
appointment papers until such time that an assessment
thereon would be officially released by the office of
petitioner. Petitioner, in effect, sought to recall and invalidate
respondents appointment on the following grounds:
1. That respondent did not meet the
experience requirement for the
contested position;
2. That the authority of Gasgonia as
PCUP Chairman ceased when the
president appointed petitioner to the
post on February 19, 2001;
3. That respondents appointment as
involving DMO V was a midnight appointment,
hence, prohibited;
4. That respondents appointment was
not effective since it was not in
accordance with pertinent laws and
rules; and
5. Notwithstanding the initial approval
of respondents appointment, the same
can be recalled for non-compliance
with the criteria provided by PCUPs
promotion plan.[9]

Education: Master[s] in Management

Experience: OIC-Administrative and
Aggrieved by petitioners inaction on her
Finance Service
appointment, respondent appealed to the Civil Service
(January 14 to June 4, 2000; Acting Commission (CSC), National Capital Region (NCR). On
Director- January 17, 2003, the CSC-NCR issued an Order[10] in favor
of respondent, the pertinent portion of which reads:
National Capital Region (August 1998
to March
1999; Assistant NCR Director WHEREFORE, we find the Appeal
(January 1997- meritorious. Ronidels appointment as
Development Management Officer V of
1998)
PCUP is deemed valid and she is, therefore,
Training: First Congress of Human allowed to assume the duties of said
Resource Management position.
Practitioners and Area Coordinator
Congress[4]
SO ORDERED.[11]

After a thorough evaluation, the PCUP National Selection

Board (NSB) found respondent to have met the minimum
qualifications for the position of DMO V. Accordingly, she,
together with another applicant, Alicia S. Diaz (Diaz), were
declared fit for promotion.[5]
Thus, on June 1, 2000 and February 23, 2001, then PCUP
Chairperson Atty. Donna Z. Gasgonia (Gasgonia) issued
Considering that Gasgonia received her salary until February
25, 2001 and petitioner took his oath and assumed office only
the following day, the CSC-NCR concluded that at the time of
respondents appointment on February 23, 2001, Gasgonia
was still the appointing authority. It further held that although
the appointment was issued a few days prior to the expiration
of Gasgonias tenure, the same was deliberated upon for
almost a year; thus, it cannot be considered a midnight

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 42

appointment. Finally, the CSC-NCR upheld respondents
appointment since it had been passed upon by the PCUP-NSB.
On November 18, 2003, petitioners motion for
reconsideration was denied.[12] He, thereafter, elevated the
matter to the CSC.
On September 23, 2004, the CSC granted[13] petitioners
appeal. While upholding the authority of Gasgonia, the
questioned promotional appointment was nonetheless
invalidated for non-compliance with certain procedural
requirements set forth in CSC Resolution No.
973685[14] dated August 28, 1997. The CSC Resolution
specifically required the submission of two copies of the
monthly Report on Personnel Action (ROPA), and further
provided that failure to comply with such requirement shall
render the appointment lapsed and inefficacious. Since no
ROPA was ever submitted by PCUP to CSC, respondents
appointment was, therefore, declared invalid.
On February 25, 2005, the CSC denied respondents
motion for reconsideration.[15]
On a petition for review, the CA reversed and set aside the
CSC Resolutions and consequently affirmed the CSC-NCRs
January 17, 2003 Order. The appellate court did not agree
with the CSCs action invalidating respondents appointment
solely on technical grounds. It emphasized that the
submission of the monthly ROPA was the responsibility of
PCUP and not the respondents. Hence, she should not be
prejudiced by PCUPs inaction.
Aggrieved, petitioner, through the Office of the Solicitor
General, now assails the CA decision in this petition for review
on certiorari on the lone issue of the validity of respondents
appointment as PCUP DMO V.
The petition must fail.
In resolving the issue posed by petitioner, we must decide the
following sub-issues: 1) whether Gasgonia had the authority
to appoint respondent to the position of DMO V
notwithstanding the appointment of petitioner as the new
chairperson of the PCUP; 2) whether respondents
appointment may be invalidated for failure to meet the
qualification standards for said position; and 3) whether the
failure of PCUP to submit two copies of the ROPA made
respondents appointment inefficacious.
The Court notes that on February 19, 2001, petitioner was
appointed as the new chairperson and chief executive officer
of PCUP. On February 23,
2001, Gasgonia issued a promotional appointment in
favor of respondent. On the same day, respondent took her
oath and assumed office. On February 26, 2001, petitioner
also took his oath and assumed office.
Petitioner insists that since he was appointed as the new PCUP
Chairperson on the 19th of February, Gasgonia no longer had
the authority to extend a promotional appointment in favor of
respondent on the 23rd of February. Respondent, on the other
hand, claims that Gasgonia was still the appointing authority
prior to petitioners assumption of office on the 26th.
LAW ON PUBLIC OFFICERS
The CSC-NCR, CSC and the CA are one in saying that
Gasgonia still had appointing authority at the time she issued
respondents promotional appointment.
We find no reason to depart from such conclusion.
Well-settled is the rule that an oath of office is a
qualifying requirement for a public office, a prerequisite to the
full investiture of the office. [16] Since petitioner took his oath
and assumed office only on February 26, it was only then that
his right to enter into the position became plenary and
complete. [17] Prior to such oath, Gasgonia still had the right
to exercise the functions of her office. It is also well to note
that per certification issued by Raymond C. Santiago,
Accountant of PCUP, Gasgonia received her last salary for the
period covering February 1-25, 2001; and petitioner received
his first salary for the period covering February 26 to March
7, 200[1].[18]
Clearly, at the time of respondents appointment on
February 23, Gasgonia still was the rightful occupant of the
position and was, therefore, authorized to extend a valid
promotional appointment.
Petitioner further contends that respondents
appointment should be invalidated for respondents failure to
meet the experience requirement for the contested position.
This contention is also without merit.
The question of respondents qualifications is a
factual issue which calls for the examination of the evidence
presented by the contending parties. Certainly, it is beyond
the power of this Court to review. This is especially true in the
instant case, as the CSC-NCR, CSC and the CA have all found
that, indeed, respondent possesses the required
qualifications. As repeatedly held, we accord great respect to
the findings of administrative agencies because they have
acquired expertise in their jurisdiction; and we refrain from
questioning their findings, particularly when these are
affirmed by the appellate tribunal. We are not inclined to re-
examine and re-evaluate the probative value of the evidence
proffered in the concerned forum, which had formed the basis
of the latters impugned decision, resolution or order, absent
a clear showing of arbitrariness and want of any rational basis
therefor.[19]
An appointment to a public office is the unequivocal
act of designating or selecting, by one having the authority,
an individual to discharge and perform the duties
and functions of an office or trust.[20] In the appointment or
promotion of employees, the appointing authority considers
not only their civil service eligibilities but also their
performance, education, work experience, trainings and
seminars attended, agency examinations and
seniority. Consequently, the appointing authority has the right
of choice which he may exercise freely according to his best
judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and
eligibilities. The final choice of the appointing authority should
( A p p o i n t m e n t ) | 43
be respected and left undisturbed. Judges should not
substitute their judgment for that of the appointing
authority.[21] Sufficient, if not plenary, discretion should be
granted to those entrusted with the responsibility of
administering the offices concerned. They are in a position to
determine who can best perform the functions of the office
vacated. Not only is the appointing authority the officer
primarily responsible for the administration of the office, he is
also in the best position to determine who among the
prospective appointees can effectively discharge the functions
of the position.[22]
Moreover, promotions in the Civil Service should
always be made on the basis of qualifications, including
occupational competence, moral character, devotion to duty,
and loyalty to the service. The last trait should be given
appropriate weight, to reward the civil servant who has
chosen to make his employment in the government a lifetime
career in which he can expect advancement through the years
for work well done. Political patronage should not be
necessary. His record alone should be sufficient assurance
that when a higher position becomes vacant, he shall
be seriously considered for the promotion and, if warranted,
preferred to less devoted aspirants.[23]
We would like to stress that once an appointment is issued
and the moment the appointee assumes a position in the
civil service under a
completed appointment, he acquires a legal, not merely
equitable, right to the position which is protected not only by
statute, but also by the Constitution; and 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.[24]
Lastly, we agree with the appellate court that respondents
appointment could not be invalidated solely because of PCUPs
failure to submit two copies of the ROPA as required by CSC
Resolution No. 97368. In the said resolution, the CSC
delegated to PCUP the authority to take final action on its
employees appointments. It further required the submission
within the first fifteen calendar days of each month two copies
of the monthly ROPA, together with certified true copies of
appointments acted upon. Finally, it provided that failure to
submit the ROPAs within the prescribed period shall render all
appointments listed therein lapsed and ineffective.
Pursuant to the above resolution, while upholding Gasgonias
appointing power, the CSC still invalidated respondents
appointment. The CA, however, reached a different
conclusion by upholding the validity of the questioned
appointment. We quote with approval the appellate courts
ratiocination in this wise:
To our minds, however, the invalidation of the
[respondents] appointment based on this sole
technical ground is unwarranted, if not harsh and
arbitrary, considering the factual milieu of this
case. For one, it is not the [respondents] duty to
comply with the requirement of the submission of the
ROPA and the certified true copies of her appointment
to [the Civil Service Commission Field Office or] CSCFO
within the period stated in the aforequoted CSC
Resolution. The said resolution categorically provides
that it is the PCUP, and not the appointee as in the
case of the [respondent] here, which is required to
comply with the said reportorial requirements.
LAW ON PUBLIC OFFICERS
Moreover, it bears pointing out that only a few days
after the [petitioner] assumed his new post as
PCUP Chairman, he directed the
PCUP to hold the processing of [respondents]
appointment papers in abeyance, until such time that
an assessment thereto is officially released from his
office. Unfortunately, up to this very day, the
[respondent] is still defending her right to enjoy her
promotional appointment as DMO V. Naturally, her
appointment failed to comply with the PCUPs
reportorial requirements under CSC Resolution No.
97-3685 precisely because of the [petitioners] inaction
to the same.
We believe that the factual circumstances of this case
calls for the application of equity. To our minds, the
invalidation of the [respondents] appointment due to
a procedural lapse which is undoubtedly beyond her
control, and certainly not of her own making but that
of the [petitioner], justifies the relaxation of the
provisions of CSC Board Resolution No. 97-3685, pars.
6,7 and 8. Hence, her appointment must be upheld
based on equitable considerations, and that the non-
submission of the ROPA and the certified true copies
of her appointment to the CSCFO within the period
stated in the aforequoted CSC Resolution should not
work to her damage and prejudice. Besides, the
[respondent] could not at all be faulted for negligence
as she exerted all the necessary vigilance and efforts
to reap the blessings of a work promotion. Thus, We
cannot simply ignore her plight. She has fought hard
enough to claim what is rightfully hers and, as a matter
of simple justice, good conscience, and equity, We
should not allow Ourselves to prolong her agony.
All told, We hold that the [respondents] appointment
is valid, notwithstanding the aforecited procedural
lapse on the part of PCUP which obviously was the own
making of herein [petitioner].[25]
In Civil Service Commission v. Joson, Jr.,[26] we had the
occasion to relax the rules on the reportorial requirement and
put a stamp of validity on an appointment that was not
included in the agencys ROPA within the time prescribed by
the rules. In Joson, the Philippine Overseas Employment
Administration (POEA) failed to include Priscilla Ongs
appointment in its ROPA for July 1995. The records, however,
showed that the agency failed to include her appointment
because its request for exemption from the educational
requisite for confidential staff members was yet to be resolved
by the CSC. In view thereof, we found the non-compliance
with the rules justified, and insufficient to invalidate an
appointment.
In the instant case, it is obvious that respondents
appointment was not included in the ROPA because the
new PCUP Chairperson and CEO had directed the Human
Resources Department to stop the processing of respondents
appointment until after the assessment thereon was released
from petitioners office. In both this and the Joson case, the
appointee could not be faulted for the non-compliance with
the CSC reportorial requirement.
( A p p o i n t m e n t ) | 44

We, therefore, apply the same conclusion to both cases.
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS
WHEREFORE, premises considered, the petition is DENIED for
lack of merit. The CA decision and resolution dated August 8,
2007 and December 17, 2007, respectively, are AFFIRMED.
SO ORDERED.
G.R. No. 96298 May 14, 1991
RENATO M. LAPINID, petitioner,
vs.
AUTHORITY and JUANITO JUNSAY, respondents.
Brillantes, Nachura, Navarro & Arcilla Law Offices for
petitioner.
Adolpho M. Guerzon for J. Junsay, Jr.
Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-
Tingzon for Civil Service Commission.

CRUZ, J.:
The issue raised in this case has been categorically resolved
in a long line of cases that should have since guided the
policies and actions of the respondent Civil Service
Commission. Disregard of our consistent ruling on this matter
has needlessly imposed on the valuable time of the Court and
indeed borders on disrespect for the highest tribunal. We
state at the outset that this conduct can no longer be
countenanced.
Petitioner Renato M. Lapinid was appointed by the Philippine
Ports Authority to the position of Terminal Supervisor at the
Manila International Container Terminal on October 1, 1988.
This appointment was protested on December 15, 1988, by
private respondent Juanito Junsay, who reiterated his earlier
representations with the Appeals Board of the PPA on May 9,
1988, for a review of the decision of the Placement Committee
dated May 3, 1988. He contended that he should be
designated terminal supervisor, or to any other comparable
position, in view of his preferential right thereto. On June 26,
1989, complaining that the PPA had not acted on his protest,
Junsay went to the Civil Service Commission and challenged
Lapinid's appointment on the same grounds he had earlier
raised before the PPA. In a resolution dated February 14,
1990, the Commission disposed as follows:
After a careful review of the records of the case, the
Commission finds the appeal meritorious. In the
comparative evaluation sheets, the parties were
evaluated according to the following criteria,
namely: eligibility; education; work experience;
productivity/performance/ attendance; integrity;
initiative/leadership; and physical
characteristics/personality traits. The results of the
evaluation are as follows:
JUNSAY, Juanito — 79.5
VILLEGAS, Benjamin — 79
LAPINID, Renato — 75
DULFO, Antonio — 78
MARIANO, Eleuterio — 79
FLORES, Nestor — 80
DE GUZMAN, Alfonso — 80
VER, Cesar — 80
It is thus obvious that Protestants Junsay (79.5) and
Villegas (79) have an edge over that of protestees
Lapinid (75) and Dulfo (78).
Foregoing premises considered, it is directed that
Appellants Juanito Junsay and Benjamin Villegas be
appointed as Terminal Supervisor (SG 18) vice
protestees Renato Lapinid and Antonio Dulfo
respectively who may be considered for appointment
to any position commensurate and suitable to their
qualifications, and that the Commission be notified
within ten (10) days of the implementation hereof.

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 45

 SO ORDERED.
Upon learning of the said resolution, Lapinid, 7who claimed
he had not been informed of the appeal and had not been
heard thereon, filed a motion for reconsideration on March 19,
1990. This was denied on May 25, 1990. The Philippine Ports
Authority also filed its own motion for reconsideration on June
19, 1990, which was denied on August 17, 1990. A second
motion for reconsideration filed on September 14, 1990,
based on the re-appreciation of Lapinid's rating from 75% to
84%, was also denied on October 19, 1990.
When the petitioner came to this Court on December 13,
1990, we resolved to require Comments from the respondents
and in the meantime issued a temporary restraining order.
The Solicitor General took a stand against the Civil Service
Commission which, at his suggestion, was allowed to file its
own Comment. The petitioner filed a Reply. The private
respondent's Comment was dispensed with when it was not
filed within the prescribed period.
We see no reason to deviate from our consistent ruling on the
issue before us.
In Luego v. Civil Service Commission,1 this Court declared:
The issue is starkly simple: Is the Civil Service
Commission authorized to disapprove a permanent
appointment on the ground that another person is
better qualified than the appointee and, on the basis
of this finding, order his replacement by the latter?
xxx xxx xxx
Appointment is an essentially discretionary power
and must be performed by the officer in which it is
vested according to his best lights, the only condition
being that the appointee should possess the
qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that
there are others better qualified who should have
been preferred. This is a political question involving
considerations of wisdom which only the appointing
authority can decide.
xxx xxx xxx
Significantly, the Commission on Civil Service
acknowledged that both the petitioner and the
private respondent were qualified for the position in
controversy. That recognition alone rendered
it functus officio in the case and prevented it from
acting further thereon except to affirm the validity of
the petitioner's appointment. To be sure, it had no
authority to revoke the said appointment simply
because it believed that the private respondent was
better qualified for that would have constituted an
encroachment on the discretion vested solely in the
city mayor.
The same ruling has been affirmed, in practically the same
language as Luego, in Central Bank v. Civil Service
Commission, 171 SCRA 744; Santiago v. Civil Service
Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022
and G.R. No. 85804, March 9, 1989, En Banc, Minute
Resolution; Galura v. Civil Service Commission, G.R. No.
85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v.
Mamangun, G.R. No. 85941, June 15, 1989, En Banc, Minute
Resolution; Remigio v. Chairman, Civil Service Commission,
G.R. No. 86324, July 6, 1989, En Banc, Minute
Resolution; Aurora Macacua v. Civil Service Commission, G.R.
No. 91520, July 31, 1990, En Banc, Minute
Resolution; Abdulwahab A. Bayao v. Civil Service Commission,
G.R. No. 92388, September 11, 1990, En Banc, Minute
Resolution; Orbos v. Civil Service Commission, G.R. No.
92561, September 12, 1990; Alicia D. Tagaro v. The Hon. Civil
LAW ON PUBLIC OFFICERS
Service Commission, et al., G.R. No. 90477, September 13,
1990, En Banc, Minute Resolution; Elenito Lim v. Civil Service
Commission, et al., G.R. No. 87145, October 11, 1990, En
Banc, Minute Resolution; Teologo v. Civil Service Commission,
G.R. No. 92103, November 8, 1990; Simpao v. Civil Service
Commission, G.R. No. 85976, November 15, 1990.
Only recently, in Gaspar v. Court of Appeals2 this Court said:
The only function of the Civil Service Commission in
cases of this nature, according to Luego, is to review
the appointment in the light of the requirements of
the Civil Service Law, and when it finds the appointee
to be qualified and all other legal requirements have
been otherwise satisfied, it has no choice but to
attest to the appointment. Luego finally points out
that the recognition by the Commission that both the
appointee and the protestant are qualified for the
position in controversy renders it functus officio in
the case and prevents it from acting further thereon
except to affirm the validity of the former's
appointment; it has no authority to revoke the
appointment simply because it considers another
employee to be better qualified for that would
constitute an encroachment on the discretion vested
in the appointing authority.
xxx xxx xxx
The determination of who among several candidates
for a vacant position has the best qualifications is
vested in the sound discretion of the Department
Head or appointing authority and not in the Civil
Service Commission. Every particular job in an office
calls for both formal and informal qualifications.
Formal qualifications such as age, number of
academic units in a certain course, seminars
attended, etc., may be valuable but so are such
intangibles as resourcefulness, team spirit, courtesy,
initiative, loyalty, ambition, prospects for the future,
and best interests, of the service. Given the demands
of a certain job, who can do it best should be left to
the Head of the Office concerned provided the legal
requirements for the office are satisfied. The Civil
Service Commission cannot substitute its judgment
for that of the Head of Office in this regard.
It is therefore incomprehensible to the Court why, despite
these definitive pronouncements, the Civil Service
Commission has seen fit to ignore, if not defy, the clear
mandate of the Court.
We declare once again, and let us hope for the last time, that
the Civil Service Commission has no power of appointment
except over its own personnel. Neither does it have the
authority to review the appointments made by other offices
except only to ascertain if the appointee possesses the
required qualifications. The determination of who among
aspirants with the minimum statutory qualifications should be
preferred belongs to the appointing authority and not the Civil
Service Commission. It cannot disallow an appointment
because it believes another person is better qualified and
much less can it direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court
cannot compel.1âwphi1 While the act of appointment may in
proper cases be the subject of mandamus, the selection itself
of the appointee—taking into account the totality of his
qualifications, including those abstract qualities that define his
personality—is the prerogative of the appointing authority.
This is a matter addressed only to the discretion of the
appointing authority. It is a political question that the Civil
Service Commission has no power to review under the
Constitution and the applicable laws.
( A p p o i n t m e n t ) | 46
Commenting on the limits of the powers of the public order dated December 13, 1990, is made PERMANENT. No
respondent, Luego declared: costs.
It is understandable if one is likely to be misled by SO ORDERED.
the language of Section 9(h) of Article V of the Civil
Service Decree because it says the Commission has
the power to "approve" and "disapprove"
appointments. Thus, it is provided therein that the
Commission shall have inter alia the power to:
9(h) Approve all appointments, whether
original or promotional, to positions in the
civil service, except those presidential
appointees, members of the Armed Forces
of the Philippines, police forces, firemen,
and jailguards, and disapprove those where
the appointees do not possess appropriate
eligibility or required qualifications.
(Emphasis supplied)
However, a full reading of the provision, especially
of the underscored parts, will make it clear that all
the Commission is actually allowed to do is check
whether or not the appointee possesses the
appropriate civil service eligibility or the required
qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other criterion
is permitted by law to be employed by the
Commission when it acts on—or as the Decree says,
"approves" or "disapproves'—an appointment made
by the proper authorities.
The Court believes it has stated the foregoing doctrine clearly
enough, and often enough, for the Civil Service Commission
not to understand them. The bench does; the bar does; and
we see no reason why the Civil Service Commission does not.
If it will not, then that is an entirely different matter and shall
be treated accordingly.
We note with stern disapproval that the Civil Service
Commission has once again directed the appointment of its
own choice in the case at bar. We must therefore make the
following injunctions which the Commission must note well
and follow strictly.
Whatever the reasons for its conduct, the Civil Service
Commission is ORDERED to desist from disregarding the
doctrine announced in Luego v. Civil Service Commission and
the subsequent decisions reiterating such ruling. Up to this
point, the Court has leniently regarded the attitude of the
public respondent on this matter as imputable to a lack of
comprehension and not to intentional intransigence. But we
are no longer disposed to indulge that fiction. Henceforth,
departure from the mandate of Luego by the Civil Service
Commission after the date of the promulgation of this decision
shall be considered contempt of this Court and shall be dealt
with severely, in view especially of the status of the
contemner.
While we appreciate the fact that the Commission is a
constitutional body, we must stress, as a necessary reminder,
that every department and office in the Republic must know
its place in the scheme of the Constitution. The Civil Service
Commission should recognize that its acts are subject to
reversal by this Court, which expects full compliance with its
decisions even if the Commission may not agree with them.
The Commission on Civil Service has been duly warned.
Henceforth, it disobeys at its peril.
WHEREFORE, the petition is GRANTED. The Resolutions of the
respondent Civil Service Commission dated February 14,
1990, May 25, 1990, August 17, 1990, and October 19, 1990,
are REVERSED and SET ASIDE. The temporary restraining

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 47

 G.R. No. 92008 July 30, 1990
RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
Ledesma, Saludo & Associates for petitioner.
CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks
reinstatement to the office of General Manager of the
Philippine Tourism Authority from which he claims to have
been removed without just cause in violation of his security of
tenure.
The petitioner bases his claim on the following communication
addressed to him by the Minister of Tourism on April 7, 1986:
MEMORANDUM TO: MR. RAMON P.
BINAMIRA
You are hereby designated General
Manager of the Philippine Tourism
Authority, effective immediately.
By virtue hereof, you may qualify and enter
upon the performance of the duties of the
office.
(Sgd.) JOSE ANTONIO GONZALES Minister
of Tourism and Chairman, P.T.A. Board
Pursuant thereto, the petitioner assumed office on the same
date.
On April 10, 1986, Minister Gonzales sought approval from
President Aquino of the composition of the Board of Directors
of the PTA, which included Binamira as Vice-Chairman in his
capacity as General Manager. This approval was given by the
President on the same date. 1
Binamira claims that since assuming office, he had discharged
the duties of PTA General Manager and Vice-Chairman of its
Board of Directors and had been acknowledged as such by
various government offices, including the Office of the
President.
He complains, though, that on January 2, 1990, his
resignation was demanded by respondent Garrucho as the
new Secretary of Tourism. Binamira's demurrer led to an
unpleasant exchange that led to his filing of a complaint
against the Secretary with the Commission on Human Rights.
But that is another matter that does not concern us here.
What does is that on January 4, 1990, President Aquino sent
respondent Garrucho the following memorandum, 2copy
furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D.
Garrucho, Jr.. Secretary of Tourism
It appearing from the records you have
submitted to this Office that the present
General Manager of the Philippine Tourism
Authority was designated not by the
President, as required by P.D. No. 564, as
amended, but only by the Secretary of
Tourism, such designation is invalid.
Accordingly, you are hereby designated
concurrently as General Manager, effective
immediately, until I can appoint a person to
serve in the said office in a permanent
capacity.
Please be guided accordingly.
LAW ON PUBLIC OFFICERS
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine
Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA
in accordance with this memorandum, the petitioner filed this
action against him to question his title. Subsequently, while
his original petition was pending, Binamira filed a
supplemental petition alleging that on April 6, 1990, the
President of the Philippines appointed Jose A. Capistrano as
General Manager of the Philippine Tourism Authority.
Capistrano was impleaded as additional respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine
Tourism Authority, provides as follows:
SECTION 23-A. General Manager-
Appointment and Tenure. — The General
Manager shall be appointed by the
President of the Philippines and shall serve
for a term of six (6) years unless sooner
removed for cause; Provided, That upon
the expiration of his term, he shall serve as
such until his successor shall have been
appointed and qualified. (As amended by
P.D. 1400)
It is not disputed that the petitioner was not appointed by the
President of the Philippines but only designated by the
Minister of Tourism. There is a clear distinction between
appointment and designation that the petitioner has failed to
consider.
Appointment may be defined as the selection, by the authority
vested with the power, of an individual who is to exercise the
functions of a given office. 3 When completed, usually with its
confirmation, the appointment results in security of tenure for
the person chosen unless he is replaceable at pleasure
because of the nature of his office. Designation, on the other
hand, connotes merely the imposition by law of additional
duties on an incumbent official, 4as where, in the case before
us, the Secretary of Tourism is designated Chairman of the
Board of Directors of the Philippine Tourism Authority, or
where, under the Constitution, three Justices of the Supreme
Court are designated by the Chief Justice to sit in the Electoral
Tribunal of the Senate or the House of Representatives. 5 It is
said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment
because it likewise involves the naming of a particular person
to a specified public office. That is the common understanding
of the term. However, where the person is merely designated
and not appointed, the implication is that he shall hold the
office only in a temporary capacity and may be replaced at
will by the appointing authority. In this sense, the designation
is considered only an acting or temporary appointment, which
does not confer security of tenure on the person named.
Even if so understood, that is, as an appointment, the
designation of the petitioner cannot sustain his claim that he
has been illegally removed. The reason is that the decree
clearly provides that the appointment of the General Manager
of the Philippine Tourism Authority shall be made by the
President of the Philippines, not by any other officer.
Appointment involves the exercise of discretion, which
because of its nature cannot be delegated. Legally speaking,
it was not possible for Minister Gonzales to assume the
exercise of that discretion as an alter ego of the President.
The appointment (or designation) of the petitioner was not a
merely mechanical or ministerial act that could be validly
( A p p o i n t m e n t ) | 48
performed by a subordinate even if he happened as in this With these rulings, the petitioner's claim of security of tenure
case to be a member of the Cabinet. must perforce fall to the ground. His designation being an
unlawful encroachment on a presidential prerogative, he did
An officer to whom a discretion is entrusted
not acquire valid title thereunder to the position in question.
cannot delegate it to another, the
Even if it be assumed that it could be and was authorized, the
presumption being that he was chosen
designation signified merely a temporary or acting
because he was deemed fit and competent
appointment that could be legally withdrawn at pleasure, as
to exercise that judgment and discretion,
in fact it was (albeit for a different reason).i•t•c-aüsl In either
and unless the power to substitute another
case, the petitioner's claim of security of tenure must be
in his place has been given to him, he
rejected.
cannot delegate his duties to another. 6
The Court sympathizes with the petitioner, who apparently
In those cases in which the proper
believed in good faith that he was being extended a
execution of the office requires, on the part
permanent appointment by the Minister of Tourism. After all,
of the officer, the exercise of judgment or
Minister Gonzales had the ostensible authority to do so at the
discretion, the presumption is that he was
time the designation was made. This belief seemed
chosen because he was deemed fit and
strengthened when President Aquino later approved the
competent to exercise that judgment and
composition of the PTA Board of Directors where the
discretion, and, unless power to substitute
petitioner was designated Vice-Chairman because of his
another in his place has been given to him,
position as General Manager of the PTA. However, such
he cannot delegate his duties to another. 7
circumstances fall short of the categorical appointment
Indeed, even on the assumption that the power conferred on required to be made by the President herself, and not the
the President could be validly exercised by the Secretary, we Minister of Tourism, under Sec. 23 of P.D. No. 564. We must
still cannot accept that the act of the latter, as an extension rule therefore that the petitioner never acquired valid title to
or "projection" of the personality of the President, made the disputed position and so has no right to be reinstated as
irreversible the petitioner's title to the position in question. General Manager of the Philippine Tourism Authority.
The petitioner's conclusion that Minister Gonzales's act was in
WHEREFORE, the petition is DISMISSED, with costs against
effect the act of President Aquino is based only on half the
the petitioner. It is so ordered.
doctrine he vigorously invokes. Justice Laurel stated that
doctrine clearly in the landmark case of Villena v. Secretary of
the Interior, 8 where he described the relationship of the
President of the Philippines and the members of the Cabinet
as follows:
... all executive and administrative
organizations are adjuncts of the Executive
Department, the heads of the various
executive departments are assistants and
agents of the Chief Executive, and, except
in cases where the Chief Executive is
required by the Constitution or the law to
act in person or the exigencies of the
situation demand that he act personally,
the multifarious executive and
administrative functions of the Chief
Executive are performed by and through
the executive departments, and the acts of
the secretaries of such departments,
performed and promulgated in the regular
course of business, are, unless disapproved
or reprobated by the Chief Executive,
presumptively the acts of the Chief
Executive.
The doctrine presumes the acts of the Department Head to
be the acts of the President of the Philippines when
"performed and promulgated in the regular course of
business," which was true of the designation made by Minister
Gonzales in favor of the petitioner. But it also adds that such
acts shall be considered valid only if not 'disapproved or
reprobated by the Chief Executive," as also happened in the
case at bar.
The argument that the designation made by Minister Gonzales
was approved by President Aquino through her approval of
the composition of the Board of Directors of the PTA is not
persuasive. It must be remembered that Binamira was
included therein as Vice- Chairman only because of his
designation as PTA General Manager by Minister Gonzales.
Such designation being merely provisional, it could be recalled
at will, as in fact it was recalled by the President herself,
through the memorandum she addressed to Secretary
Garrucho on January 4, 1990.

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 49

 FUNA VS. ERMITA
GR 184740
VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus
under Rule 65 with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction, to
declare as unconstitutional the designation of respondent
Undersecretary Maria Elena H. Bautista as Officer-in-Charge
(OIC) of the Maritime Industry Authority (MARINA).
The Antecedents
On October 4, 2006, President Gloria Macapagal-Arroyo
appointed respondent Maria Elena H. Bautista (Bautista) as
Undersecretary of the Department of Transportation and
Communications (DOTC), vice Agustin R. Bengzon. Bautista
was designated as Undersecretary for Maritime Transport of
the department under Special Order No. 2006-171
dated October 23, 2006.[1]
On September 1, 2008, following the resignation of then
MARINA Administrator Vicente T. Suazo, Jr., Bautista was
designated as Officer-in-Charge (OIC), Office of the
Administrator, MARINA, in concurrent capacity as DOTC
Undersecretary.[2]
On October 21, 2008, Dennis A. B. Funa in his capacity as
taxpayer, concerned citizen and lawyer, filed the instant
petition challenging the constitutionality of Bautistas
appointment/designation, which is proscribed by the
prohibition on the President, Vice-President, the Members of
the Cabinet, and their deputies and assistants to hold any
other office or employment.
On January 5, 2009, during the pendency of this petition,
Bautista was appointed Administrator of the MARINA vice
Vicente T. Suazo, Jr.[3] and she assumed her duties and
responsibilities as such on February 2, 2009.[4]
The Case
Petitioner argues that Bautistas concurrent positions as DOTC
Undersecretary and MARINA OIC is in violation of Section 13,
Article VII of the 1987 Constitution, as interpreted and explained
by this Court in Civil Liberties
Union v. Executive Secretary,[5] and reiterated in Public
Interest Center, Inc. v. Elma.[6] He points out that while it was
clarified in Civil Liberties Union that the prohibition does not
apply to those positions held in ex-officio capacities, the
position of MARINA Administrator is not ex-officio to the post
of DOTC Undersecretary, as can be gleaned from the
provisions of its charter, Presidential Decree (P.D.) No.
474,[7] as amended by Executive Order (EO) No. 125-
A.[8] Moreover, the provisions on the DOTC in
the Administrative Code of 1987, specifically Sections 23 and
24, Chapter 6, Title XV, Book IV do not provide any ex-
officio role for the undersecretaries in any of the departments
attached agencies. The fact that Bautista was extended an
appointment naming her as OIC of MARINA shows that she
does not occupy it in an ex-officio capacity since an ex-
LAW ON PUBLIC OFFICERS
officio position does not require any further warrant or
appoint.[9]
Petitioner further contends that even if Bautistas appointment
or designation as OIC of MARINA was intended to be merely
temporary, still, such designation must not violate a standing
constitutional prohibition, citing the rationale in Achacoso v.
Macaraig.[10] Section 13, Article VII of the 1987
Constitution does not enumerate temporariness as one (1) of
the exceptions thereto.And since a temporary designation
does not have a maximum duration, it can go on for months
or years. In effect, the temporary appointment/designation
can effectively circumvent the prohibition.Allowing
undersecretaries or assistant secretaries to occupy other
government posts would open a Pandoras Box as to let them
feast on choice government positions. Thus, in case of
vacancy where no permanent appointment could as yet be
made, the remedy would be to designate one (1) of the two
(2) Deputy Administrators as the Acting Administrator. Such
would be the logical course, the said officers being in a better
position in terms of knowledge and experience to run the
agency in a temporary capacity. Should none of them merit
the Presidents confidence, then the practical remedy would
be for Undersecretary Bautista to first resign as
Undersecretary in order to qualify her as Administrator of
MARINA. As to whether she in fact does not receive or has
waived any remuneration, the same does not matter because
remuneration is not an element in determining whether there
has been a violation of Section 13, Article VII of the 1987
Constitution.[11]
Petitioner likewise asserts the incompatibility between the
posts of DOTC Undersecretary and MARINA
Administrator. The reason is that with respect to the affairs in
the maritime industry, the recommendations of
the MARINA may be the subject of counter or opposing
recommendations from the Undersecretary for Maritime
Transport. In this case, the DOTC Undersecretary for Maritime
Transport and the OIC of MARINA have become one (1) and
the same person. There is no more checking and counter-
checking of powers and functions, and therein lies the danger
to the maritime industry. There is no longer a person above
the Administrator of MARINA who will be reviewing the acts
of said agency because the person who should be overseeing
MARINA, the Undersecretary for Maritime Transport, has
effectively been compromised.[12]
Finally, petitioner contends that there is a strong possibility in
this case that the challenge herein can be rendered moot
through the expediency of simply revoking the temporary
appointment/designation. But since a similar violation can be
committed in the future, there exists a possibility of evading
review, and hence supervening events should not prevent the
Court from deciding cases involving grave violation of
the 1987 Constitution, as this Court ruled in Public Interest
Center. Notwithstanding its mootness therefore, should it
occur, there is a compelling reason for this case to be decided:
the issue raised being capable of repetition, yet evading
review.[13]
On the other hand, the respondents argue that the requisites
of a judicial inquiry are not present in this case. In fact, there
no longer exists an actual controversy that needs to be
resolved in view of the appointment of respondent Bautista as
MARINA Administrator effective February 2, 2009 and the
relinquishment of her post as DOTC Undersecretary for
Maritime Transport, which rendered the present petition moot
and academic. Petitioners prayer for a temporary restraining
order or writ of preliminary injunction is likewise moot and
( A p p o i n t m e n t ) | 50
academic since, with this supervening event, there is nothing
left to enjoin.[14]
Respondents also raise the lack of legal standing of petitioner
to bring this suit. Clear from the standard set in Public Interest
Center is the requirement that the party suing as a taxpayer
must prove that he has sufficient interest in preventing illegal
expenditure of public funds, and more particularly, his
personal and substantial interest in the case. Petitioner,
however, has not alleged any personal or substantial interest
in this case. Neither has he claimed that public funds were
actually disbursed in connection with respondent Bautistas
designation as MARINA OIC. It is to be noted that respondent
Bautista did not receive any salary while she was MARINA
OIC. As to the alleged transcendental importance of an issue,
this should not automatically confer legal standing on a
party.[15]
Assuming for the sake of argument that the legal question
raised herein needs to be resolved, respondents submit that
the petition should still be dismissed for being unmeritorious
considering that Bautistas concurrent designation as MARINA
OIC and DOTC Undersecretary was constitutional. There was
no violation of Section 13, Article VII of the 1987
Constitution because respondent Bautista was merely
designated acting head of MARINA on September 1,
2008. She was designated MARINA OIC, not appointed
MARINA Administrator. With the resignation of Vicente T.
Suazo, Jr., the position of MARINA Administrator was left
vacant, and pending the appointment of permanent
Administrator, respondent Bautista was designated OIC in a
temporary capacity for the purpose of preventing a hiatus in
the discharge of official functions. Her case thus falls under
the recognized exceptions to the rule against multiple
offices, i.e., without additional compensation (she did not
receive any emolument as MARINA OIC) and as required by
the primary functions of the office. Besides, Bautista held the
position for four (4) months only, as in fact when she was
appointed MARINA Administrator on February 2, 2009, she
relinquished her post as DOTC Undersecretary for Maritime
Transport, in acknowledgment of the proscription on the
holding of multiple offices.[16]
As to petitioners argument that the DOTC Undersecretary for
Maritime Transport and MARINA Administrator are
incompatible offices, respondents cite the test laid down
in People v. Green,[17]which held that [T]he offices must
subordinate, one [over] the other, and they must, per
se, have the right to interfere, one with the other, before they
are compatible at common law. Thus, respondents point out
that any recommendation by the MARINA Administrator
concerning issues of policy and administration go to the
MARINA Board and not the Undersecretary for Maritime
Transport. The Undersecretary for Maritime Transport is, in
turn, under the direct supervision of the DOTC
Secretary. Petitioners fear that there is no longer a person
above the Administrator of MARINA who will be reviewing the
acts of said agency (the Undersecretary for Maritime
Transport) is, therefore, clearly unfounded.[18]
In his Reply, petitioner contends that respondents argument
on the incompatibility of positions was made on the mere
assumption that the positions of DOTC Undersecretary for
Maritime Transport and the administratorship of MARINA are
closely related and is governed by Section 7, paragraph 2,
Article IX-B of the 1987 Constitution rather than by Section
13, Article VII. In other words, it was a mere secondary
argument. The fact remains that, incompatible or not, Section
LAW ON PUBLIC OFFICERS
13, Article VII still does not allow the herein challenged
designation.[19]
The sole issue to be resolved is whether or not the designation
of respondent Bautista as OIC of MARINA, concurrent with the
position of DOTC Undersecretary for Maritime Transport to
which she had been appointed, violated the constitutional
proscription against dual or multiple offices for Cabinet
Members and their deputies and assistants.
Our Ruling
The petition is meritorious.
Requisites for Judicial Review
The courts power of judicial review, like almost all other
powers conferred by the Constitution, is subject to several
limitations, namely: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the
person challenging the act must have standing to challenge;
he must have a personal and substantial interest in the case,
such that he has sustained or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality
must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the
case.[20] Respondents assert that the second requisite is
absent in this case.
Generally, a party will be allowed to litigate only when (1) he
can show that he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of
the government; (2) the injury is fairly traceable to the
challenged action; and (3) the injury is likely to be redressed
by a favorable action.[21] The question on standing is whether
such parties have alleged such a personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.[22]
In David v. Macapagal-Arroyo,[23] summarizing the rules
culled from jurisprudence, we held that taxpayers, voters,
concerned citizens, and legislators may be accorded standing
to sue, provided that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of
illegal disbursement of public
funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of
obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be
a showing that the issues raised
are of transcendental
importance which must be
settled early; and
(5) for legislators, there must be a claim
that the official action complained
of infringes upon their
prerogatives as
( A p p o i n t m e n t ) | 51
 legislators. [EMPHASIS
SUPPLIED.]
Petitioner having alleged a grave violation of the constitutional
prohibition against Members of the Cabinet, their deputies
and assistants holding two (2) or more positions in
government, the fact that he filed this suit as a concerned
citizen sufficiently confers him with standing to sue for redress
of such illegal act by public officials.
The other objection raised by the respondent is that the
resolution of this case had been overtaken by events
considering the effectivity of respondent Bautistas
appointment as MARINA Administrator effective February 2,
2009 and her relinquishment of her former position as DOTC
Undersecretary for Maritime Transport.
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or
value. Generally, courts decline jurisdiction over such case or
dismiss it on ground of mootness.[24] However, as we held
in Public Interest Center, Inc. v. Elma, [25] supervening
events, whether intended or accidental, cannot prevent the
Court from rendering a decision if there is a grave violation of
the Constitution. Even in cases where supervening events
had made the cases moot, this Court did not hesitate to
resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar, and public. [26]
As a rule, the writ of prohibition will not lie to enjoin acts
already done. However, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it is
capable of repetition yet evading review. [27] In the present
case, the mootness of the petition does not bar its
resolution. The question of the constitutionality of the
Presidents appointment or designation of a Department
Undersecretary as officer-in-charge of an attached agency will
arise in every such appointment.[28]
Undersecretary Bautistas designation as MARINA OIC
falls under the stricter prohibition under Section 13,
Article VII of the 1987 Constitution.
Resolution of the present controversy hinges on the correct
application of Section 13, Article VII of the 1987 Constitution,
which provides:
SEC. 13. The President, Vice-
President, the Members of the
Cabinet, and their deputies or
assistants shall not, unless otherwise
provided in this Constitution, hold any
other office or employment during
their tenure. They shall not, during said
tenure, directly or indirectly practice any
other profession, participate in any
business, or be financially interested in any
contract with, or in any franchise, or special
privilege granted by the Government or any
subdivision, agency, or instrumentality
thereof, including government-owned or
controlled corporations or their
subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their
office.
LAW ON PUBLIC OFFICERS
On the other hand, Section 7, paragraph (2), Article IX-B
reads:
SEC. 7. x x x
Unless otherwise allowed by
law or the primary functions of his
position, no appointive official shall hold
any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof, including
government-owned or controlled
corporations or their subsidiaries.
In Civil Liberties Union, a constitutional challenge was
brought before this Court to nullify EO No. 284 issued by then
President Corazon C. Aquino on July 25, 1987, which included
Members of the Cabinet, undersecretaries and assistant
secretaries in its provisions limiting to two (2) the positions
that appointive officials of the Executive Department may hold
in government and government corporations. Interpreting the
above provisions in the light of the history and times and the
conditions and circumstances under which the Constitution
was framed, this Court struck down as unconstitutional said
executive issuance, saying that it actually allows them to hold
multiple offices or employment in direct contravention of the
express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
Noting that the prohibition imposed on the President and his
official family is all-embracing, the disqualification was held to
be absolute, as the holding of any other office is not qualified
by the phrase in the Government unlike in Section 13, Article
VI prohibiting Senators and Members of the House of
Representatives from holding any other office or employment
in the Government; and when compared with other officials
and employees such as members of the armed forces and civil
service employees, we concluded thus:
These sweeping, all-embracing prohibitions
imposed on the President and his official
family, which prohibitions are not similarly
imposed on other public officials or
employees such as the Members of
Congress, members of the civil service in
general and members of the armed forces,
are proof of the intent of the 1987
Constitution to treat the President
and his official family as a class by
itself and to impose upon said class
stricter prohibitions.
Such intent of the 1986
Constitutional Commission to be stricter
with the President and his official family
was also succinctly articulated by
Commissioner Vicente Foz after
Commissioner Regalado Maambong noted
during the floor deliberations and debate
that there was no symmetry between the
Civil Service prohibitions, originally found in
the General Provisions and the anticipated
report on the Executive Department.
Commissioner Foz Commented, We actually
have to be stricter with the President and
( A p p o i n t m e n t ) | 52
 the members of the Cabinet because they
exercise more powers and, therefore, more
checks and restraints on them are called for
because there is more possibility of abuse
in their case.
Thus, while all other
appointive officials in the civil service
are allowed to hold other office or
employment in the government
during their tenure when such is
allowed by law or by the primary
functions of their positions, members
of the Cabinet, their deputies and
assistants may do so only when
expressly authorized by the
Constitution itself. In other words,
Section 7, Article IX-B is meant to lay down
the general rule applicable to all elective
and appointive public officials and
employees, while Section 13, Article VII
is meant to be the exception
applicable only to the President, the
Vice-President, Members of the
Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the
framers of the 1987 Constitution is to
impose a stricter prohibition on the
President, Vice-President, members of the
Cabinet, their deputies and assistants with
respect to holding multiple offices or
employment in the government during their
tenure, the exception to this prohibition
must be read with equal severity. On its
face, the language of Section 13, Article VII
is prohibitory so that it must be understood
as intended to be a positive and
unequivocal negation of the privilege of
holding multiple government offices or
employment. Verily, wherever the language
used in the constitution is prohibitory, it is
to be understood as intended to be a
positive and unequivocal negation. The
phrase unless otherwise provided in this
Constitution must be given a literal
interpretation to refer only to those
particular instances cited in the Constitution
itself, to wit: the Vice-President being
appointed as a member of the Cabinet
under Section 3, par. (2), Article VII; or
acting as President in those instances
provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and
Bar Council by virtue of Section 8 (1), Article
VIII.[29] [EMPHASIS SUPPLIED.]
Respondent Bautista being then the appointed
Undersecretary of DOTC, she was thus covered by
the stricter prohibition under Section 13, Article VII and
consequently she cannot invoke the exception provided in
Section 7, paragraph 2, Article IX-B where holding another
office is allowed by law or the primary functions of the
position. Neither was she designated OIC of MARINA in an ex-
officio capacity, which is the exception recognized in Civil
Liberties Union.
LAW ON PUBLIC OFFICERS
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the 1987
Constitution was held inapplicable to posts occupied by the
Executive officials specified therein, without additional
compensation in an ex-officio capacity as provided by law and
as required by the primary functions of said office. The reason
is that these posts do not comprise any other office within the
contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on
said officials.[30] Apart from their bare assertion that
respondent Bautista did not receive any compensation when
she was OIC of MARINA, respondents failed to demonstrate
clearly that her designation as such OIC was in an ex-
officio capacity as required by the primary functions of her
office as DOTC Undersecretary for Maritime Transport.
MARINA was created by virtue of P.D. No. 474 issued by
President Ferdinand E. Marcos on June 1, 1974. It is
mandated to undertake the following:
(a) Adopt and implement a practicable and
coordinated Maritime Industry Development
Program which shall include, among others,
the early replacement of obsolescent and
uneconomic vessels; modernization and
expansion of the Philippine merchant fleet,
enhancement of domestic capability for
shipbuilding, repair and maintenance; and
the development of reservoir of trained
manpower;
(b) Provide and help provide the necessary; (i)
financial assistance to the industry through
public and private financing institutions and
instrumentalities; (ii) technological
assistance; and (iii) in general, a favorable
climate for expansion of domestic and
foreign investments in shipping enterprises;
and
(c) Provide for the effective supervision, regulation
and rationalization of the organizational
management, ownership and operations of
all water transport utilities, and other
maritime enterprises.[31]
The management of MARINA is vested in the Maritime
Administrator, who shall be directly assisted by the Deputy
Administrator for Planning and a Deputy Administrator for
Operations, who shall be appointed by the President for a term
of six (6) years. The law likewise prescribes the qualifications
for the office, including such adequate training and experience
in economics, technology, finance, law, management, public
utility, or in other phases or aspects of the maritime industry,
and he or she is entitled to receive a fixed annual
salary.[32] The Administrator shall be directly responsible to
the Maritime Industry Board, MARINAs governing body, and
shall have powers, functions and duties as provided in P.D. No.
474, which provides, under Sections 11 and 12, for his or her
general and specific functions, respectively, as follows:
SEC. 11. General Powers and Functions of the
Administrator. Subject to the general supervision and
control of the Board, the Administrators shall have the
following general powers, functions and duties;
a. To implement, enforce and apply the policies,
programs, standards, guidelines, procedures,
decisions and rules and regulations issued,
( A p p o i n t m e n t ) | 53
 prescribed or adopted by the Board pursuant to this
Decree;
b. To undertake researches, studies, investigations
and other activities and projects, on his own initiative
or upon instructions of the Board, and to submit
comprehensive reports and appropriate
recommendations to the Board for its information
and action;
c. To undertake studies to determine present and
future requirements for port development including
navigational aids, and improvement of waterways
and navigable waters in consultation with
appropriate agencies;
d. To pursue continuing research and developmental
programs on expansion and modernization of the
merchant fleet and supporting facilities taking into
consideration the needs of the domestic trade and
the need of regional economic cooperation schemes;
and
e. To manage the affairs of the Authority subject to
the provisions of this Decree and applicable laws,
orders, rules and regulations of other appropriate
government entities.
SEC. 12. Specific Powers and Functions of the
Administrator. In addition to his general powers and
functions, the Administrator shall;
a. Issue Certificate of Philippine Registry for all vessels
being used in Philippine waters, including fishing
vessels covered by Presidential Decree No. 43 except
transient civilian vessels of foreign registry, vessels
owned and/or operated by the Armed Forces of the
Philippines or by foreign governments for military
purposes, and bancas, sailboats and other watercraft
which are not motorized, of less than three gross tons;
b. Provide a system of assisting various officers,
professionals, technicians, skilled workers and
seamen to be gainfully employed in shipping
enterprises, priority being given to domestic needs;
c. In collaboration and coordination with the
Department of Labor, to look into, and promote
improvements in the working conditions and terms
of employment of the officers and crew of vessels of
Philippine registry, and of such officers and crew
members who are Philippine citizens and employed
by foreign flag vessels, as well as of personnel of
other shipping enterprises, and to assist in the
settlement of disputes between the shipowners and
ship operators and such officers and crew members
and between the owner or manager of other
shipping enterprises and their personnel;
d. To require any public water transport utility or
Philippine flag vessels to provide shipping services to
any coastal areas in the country where such services
are necessary for the development of the area, to
meet emergency sealift requirements, or when
public interest so requires;
e. Investigate by itself or with the assistance of other
appropriate government agencies or officials, or
experts from the private sector, any matter within its
jurisdiction, except marine casualties or accidents
LAW ON PUBLIC OFFICERS
which shall be undertaken by the Philippine Coast
Guard;
f. Impose, fix, collect and receive in accordance with
the schedules approved by the Board, from any
shipping enterprise or other persons concerned, such
fees and other charges for the payment of its
services;
g. Inspect, at least annually, the facilities of port and
cargo operators and recommend measures for
adherence to prescribed standards of safety, quality
and operations;
h. Approve the sale, lease or transfer of
management of vessels owned by Philippine
Nationals to foreign owned or controlled enterprises;
i. Prescribe and enforce rules and regulations for the
prevention of marine pollution in bays, harbors and
other navigable waters of the Philippines, in
coordination with the government authorities
concerned;
j. Establish and maintain, in coordination with the
appropriate government offices and agencies, a
system of regularly and promptly producing,
collating, analyzing and disseminating traffic flows,
port operations, marine insurance services and other
information on maritime matters;
k. Recommend such measures as may be necessary
for the regulation of the importation into and
exportation from the Philippines of vessels, their
equipment and spare parts;
l. Implement the rules and regulations issued by the
Board of Transportation;
m. Compile and codify all maritime laws, orders,
rules and regulations, decisions in leasing cases of
courts and the Authoritys procedures and other
requirements relative to shipping and other shipping
enterprises, make them available to the public, and,
whenever practicable to publish such materials;
n. Delegate his powers in writing to either of the
Deputy Administrators or any other ranking officials
of the Authority; Provided, That he informs the
Board of such delegation promptly; and
o. Perform such other duties as the Board may
assign, and such acts as may be necessary and
proper to implement this Decree.
With the creation of the Ministry (now Department) of
Transportation and Communications by virtue of EO No.
546, MARINA was attached to the DOTC for policy and
program coordination on July 23, 1979. Its regulatory
function was likewise increased with the issuance of EO No.
1011 which abolished the Board of Transportation and
transferred the quasi-judicial functions pertaining to water
transportation to MARINA. On January 30, 1987, EO No. 125
(amended by EO No. 125-A) was issued reorganizing the
DOTC. The powers and functions of the department and the
agencies under its umbrella were defined, further increasing
the responsibility of MARINA to the industry. Republic Act No.
9295, otherwise known as the The Domestic Shipping
Development Act of 2004,[33] further strengthened MARINAs
regulatory powers and functions in the shipping sector.
( A p p o i n t m e n t ) | 54
Given the vast responsibilities and scope of administration of
the Authority, we are hardly persuaded by respondents
submission that respondent Bautistas designation as OIC of
MARINA was merely an imposition of additional duties related
to her primary position as DOTC Undersecretary for Maritime
Transport. It appears that the DOTC Undersecretary for
Maritime Transport is not even a member of the Maritime
Industry Board, which includes the DOTC Secretary as
Chairman, the MARINA Administrator as Vice-Chairman, and
the following as members: Executive Secretary (Office of the
President), Philippine Ports Authority General Manager,
Department of National Defense Secretary, Development Bank
of the Philippines General Manager, and the Department of
Trade and Industry Secretary.[34]
Finally, the Court similarly finds respondents theory that being
just a designation, and temporary at that, respondent Bautista
was never really appointed as OIC Administrator of MARINA,
untenable. In Binamira v. Garrucho, Jr.,[35] we distinguished
between the terms appointment and designation, as follows:
Appointment may be defined as the
selection, by the authority vested with the power, of
an individual who is to exercise the functions of
a given office. When completed, usually with its
confirmation, the appointment results in security of
tenure for the person chosen unless he is replaceable
at pleasure because of the nature of his
office. Designation, on the other hand, connotes
merely the imposition by law of additional duties on
an incumbent official, as where, in the case before
us, the Secretary of Tourism is designated Chairman
of the Board of Directors of the Philippine Tourism
Authority, or where, under the Constitution, three
Justices of the Supreme Court are designated by the
Chief Justice to sit in the Electoral Tribunal of the
Senate or the House of Representatives. It is said
that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as
an appointment because it likewise involves the
naming of a particular person to a specified public
office. That is the common understanding of the
term. However,where the person is merely
designated and not appointed, the implication is
that he shall hold the office only in a temporary
capacity and may be replaced at will by the
appointing authority. In this sense, the designation
is considered only an acting or temporary
appointment, which does not confer security of
tenure on the person named.[36] [EMPHASIS
SUPPLIED.]
Clearly, respondents reliance on the foregoing definitions is
misplaced considering that the above-cited case addressed the
issue of whether petitioner therein acquired valid title to the
disputed position and so had the right to security of tenure. It
must be stressed though that while the designation was in the
nature of an acting and temporary capacity, the words hold the
office were employed. Such holding of office pertains to both
appointment and designation because the appointee or
designate performs the duties and functions of the
office. The 1987 Constitution in prohibiting dual or multiple
offices, as well as incompatible offices, refers to the holding of
the office, and not to the nature of the appointment or
designation, words which were not even found in Section 13,
Article VII nor in Section 7, paragraph 2, Article IX-B. To hold an
office means to possess or occupy the same, or to be in
LAW ON PUBLIC OFFICERS
possession and administration,[37] which implies nothing less
than the actual discharge of the functions and duties of the
office.
The disqualification laid down in Section 13, Article VII is
aimed at preventing the concentration of powers in the
Executive Department officials, specifically the President,
Vice-President, Members of the Cabinet and their deputies
and assistants. Civil Liberties Union traced the history of the
times and the conditions under which the Constitution was
framed, and construed the Constitution consistent with the
object sought to be accomplished by adoption of such
provision, and the evils sought to be avoided or remedied. We
recalled the practice, during the Marcos regime, of
designating members of the Cabinet, their deputies and
assistants as members of the governing bodies or boards of
various government agencies and instrumentalities, including
government-owned or controlled corporations. This practice
of holding multiple offices or positions in the government led
to abuses by unscrupulous public officials, who took
advantage of this scheme for purposes of self-
enrichment. The blatant betrayal of public trust evolved into
one of the serious causes of discontent with the Marcos
regime. It was therefore quite inevitable and in consonance
with the overwhelming sentiment of the people that the 1986
Constitutional Commission would draft into the proposed
Constitution the provisions under consideration, which were
envisioned to remedy, if not correct, the evils that flow from
the holding of multiple governmental offices and
employment.[38] Our declaration in that case cannot be more
explicit:
But what is indeed significant is the fact
that although Section 7, Article IX-B already
contains a blanket prohibition against the
holding of multiple offices or employment in the
government subsuming both elective and
appointive public officials, the Constitutional
Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members
of the Cabinet, their deputies and assistants from
holding any other office or employment during
their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the
different phraseologies of the constitutional
provisions in question, the intent of the framers
of the Constitution was to impose a stricter
prohibition on the President and his official
family in so far as holding other offices or
employment in the government or
elsewhere is concerned.[39] [EMPHASIS
SUPPLIED.]
Such laudable intent of the law will be defeated and rendered
sterile if we are to adopt the semantics of respondents. It
would open the veritable floodgates of circumvention of an
important constitutional disqualification of officials in the
Executive Department and of limitations on the Presidents
power of appointment in the guise of temporary designations
of Cabinet Members, undersecretaries and assistant
secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled
corporations.
As to respondents contention that the concurrent
positions of DOTC Undersecretary for Maritime Transport and
( A p p o i n t m e n t ) | 55
MARINA OIC Administrator are not incompatible offices, we [G.R. No. 130872. March 25, 1999]
find no necessity for delving into this matter. Incompatibility
of offices is irrelevant in this case, unlike in the case of PCGG FRANCISCO M. LECAROZ and LENLIE
Chairman Magdangal Elma in Public Interest Center, Inc. v. LECAROZ, petitioners, vs. SANDIGANBAYAN
Elma.[40] Therein we held that Section 13, Article VII is not and PEOPLE OF THE
applicable to the PCGG Chairman or to the Chief Presidential PHILIPPINES, respondents.
Legal Counsel, as he is not a cabinet member, undersecretary
or assistant secretary.[41]
DECISION

WHEREFORE, the petition is GRANTED. The

BELLOSILLO, J.:
designation of respondent Ma. Elena H. Bautista as Officer-in-
Charge, Office of the Administrator, Maritime Industry
Authority, in a concurrent capacity with her position as DOTC FRANCISCO M. LECAROZ and LENLIE LECAROZ, father
Undersecretary for Maritime Transport, is hereby and son, were convicted by the Sandiganbayan of thirteen
declared UNCONSTITUTIONAL for being violative of Section 13, (13) counts of estafa through falsification of public
Article VII of the 1987 Constitution and therefore, NULL and documents.[1] They now seek a review of their conviction as
VOID. they insist on their innocence.

SO ORDERED. Petitioner Francisco M. Lecaroz was the Municipal Mayor

of Santa Cruz, Marinduque, while his son, his co-petitioner
Lenlie Lecaroz, was the outgoing chairman of the Kabataang
Barangay (KB) of Barangay Bagong Silang, Municipality of
Santa Cruz, and concurrently a member of its Sangguniang
Bayan (SB) representing the Federation of Kabataang
Barangays.

In the 1985 election for the Kabataang Barangay Jowil

Red[2] won as KB Chairman of Barangay Matalaba, Santa
Cruz. Parenthetically, Lenlie Lecaroz did not run as candidate
in this electoral exercise as he was no longer qualified for the
position after having already passed the age limit fixed by law.

Sometime in November 1985 Red was appointed by then

President Ferdinand Marcos as member of the Sangguniang
Bayan of Santa Cruz representing the KBs of the
municipality. Imee Marcos-Manotoc, then the National
Chairperson of the organization, sent a telegram to Red
confirming his appointment and advising him further that
copies of his appointment papers would be sent to him in due
time through the KB Regional Office.[3] Red received the
telegram on 2 January 1986 and showed it immediately to
Mayor Francisco M. Lecaroz.

On 7 January 1986, armed with the telegram and intent

on assuming the position of sectoral representative of the KBs
to the SB, Red attended the meeting of the Sanggunian upon
the invitation of one of its members, Kagawad Rogato
Lumawig. In that meeting, Mayor Francisco M. Lecaroz
informed Red that he could not yet sit as member of the
municipal council until his appointment had been cleared by
the Governor of Marinduque. Nonetheless, the telegram was
included in the agenda as one of the subjects discussed in the
meeting.

Red finally received his appointment papers sometime in

January 1986.[4] But it was only on 23 April 1986, when then
President Corazon C. Aquino was already in power, [5] that he
forwarded these documents to Mayor Lecaroz. This
notwithstanding, Red was still not allowed by the mayor to sit
as sectoral representative in the Sanggunian.

Meanwhile, Mayor Lecaroz prepared and approved on

different dates the payment to Lenlie Lecaroz of twenty-six
(26) sets of payrolls for the twenty-six
(26) quincenas covering the period 16 January 1986 to 30
January 1987.Lenlie Lecaroz signed the payroll for 1-15
January 1986 and then authorized someone else to sign all

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 56

the other payrolls for the succeeding quincenas and claim the
corresponding salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9)
months from the date he received his appointment papers
from President Marcos, Red was finally able to secure from
the Aquino Administration a confirmation of his appointment
as KB Sectoral Representative to the Sanggunian Bayan of
Santa Cruz.
Subsequently, Red filed with the Office of the
Ombudsman several criminal complaints against Mayor
Francisco Lecaroz and Lenlie Lecaroz arising from the refusal
of the two officials to let him assume the position of KB
sectoral representative. After preliminary investigation, the
Ombudsman filed with the Sandiganbayan thirteen (13)
Informations for estafa through falsification of public
documents against petitioners, and one (1) Information for
violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and
Corrupt Practices Act, against Mayor Lecaroz alone.
On 7 October 1994 the Sandiganbayan rendered a
decision finding the two (2) accused guilty on all counts of
estafa through falsification of public documents and
sentenced each of them to -
a) imprisonment for an indeterminate period
ranging from a minimum of FIVE (5) YEARS,
ELEVEN (11) MONTHS AND ONE (1) DAY
of prision correccional to a maximum of TEN
(10) YEARS AND ONE (1) DAY of prison
mayor FOR EACH OF THE ABOVE CASES;
b) a fine in the amount of FIVE THOUSAND PESOS
(P5,000) FOR EACH OF THE ABOVE CASES or
a total of SIXTY-FIVE THOUSAND PESOS
(P65,000), and
c) perpetual special disqualification from public
office in accordance with Art. 214 of the
Revised Penal Code.
x x x (and) to pay jointly and severally the amount of
TWENTY-THREE THOUSAND SIX HUNDRED SEVENTY-FIVE
PESOS (P23,675), the amount unlawfully obtained, to the
Municipality of Sta. Cruz, Marinduque in restitution.
The Sandiganbayan ruled that since Red was elected
president of the KB and took his oath of office sometime in
1985 before then Assemblywoman Carmencita O. Reyes his
assumption of the KB presidency upon the expiration of the
term of accused Lenlie Lecaroz was valid. Conversely, the
accused Lenlie Lecaroz ceased to be a member of the KB on
the last Sunday of November 1985 and, as such, was no
longer the legitimate representative of the youth sector in the
municipal council of Sta. Cruz, Marinduque.
In convicting both accused on the falsification charges,
the Sandiganbayan elucidated -
x x x x when, therefore, accused MAYOR FRANCISCO
LECAROZ entered the name of his son, the accused LENLIE
LECAROZ, in the payroll of the municipality of Sta. Cruz for
the payroll period starting January 15, 1986, reinstating
accused LENLIE LECAROZ to his position in the Sangguniang
Bayan, he was deliberately stating a falsity when he certified
that LENLIE LECAROZ was a member of the Sangguniang
LAW ON PUBLIC OFFICERS
Bayan. The fact is that even accused LENLIE LECAROZ himself
no longer attended the sessions of the Sangguniang Bayan of
Sta. Cruz, and starting with the payroll for January 16 to 31,
1986, did not personally pick up his salaries anymore.
The accused MAYOR's acts would fall under Art. 171, par. 4,
of The Revised Penal Code which reads:
Art. 171. Falsification by public officer, employee or notary or
ecclesiastical minister. - The penalty of prision mayor and a
fine not to exceed 5,000 pesos shall be imposed upon any
public officer, employee, or notary public who, taking
advantage of his official position, shall falsify a document by
committing any of the following acts: x x x x 4. Making
untruthful statements in a narration of facts.
xxxx
Clearly, falsification of public documents has been committed
by accused MAYOR LECAROZ.
Likewise from these acts of falsification, his son, accused
LENLIE LECAROZ, was able to draw salaries from the
municipality to which he was not entitled for services he had
admittedly not rendered. This constitutes Estafa x x x x the
deceit being the falsification made, and the prejudice being
that caused to the municipality of Sta. Cruz, Marinduque for
having paid salaries to LENLIE LECAROZ who was not entitled
thereto.
Conspiracy was alleged in the Informations herein, and the
Court found the allegation sufficiently substantiated by the
evidence presented.
There is no justifiable reason why accused MAYOR LECAROZ
should have reinstated his son LENLIE in the municipal
payrolls from January 16, 1986 to January 31, 1987, yet he
did so. He could not have had any other purpose than to
enable his son LENLIE to draw salaries thereby. This
conclusion is inescapable considering that the very purpose of
a payroll is precisely that -- to authorize the payment of
salaries. And LENLIE LECAROZ did his part by actually drawing
the salaries during the periods covered, albeit through another
person whom he had authorized.
By the facts proven, there was conspiracy in the commission
of Estafa between father and son.
However, with respect to the charge of violating Sec. 3,
par. (e), of RA No. 3.019, the Sandiganbayan acquitted Mayor
Francisco Lecaroz. It found that Red was neither authorized
to sit as member of the SB because he was not properly
appointed thereto nor had he shown to the mayor sufficient
basis for his alleged right to a seat in the municipal council. On
this basis, the court a quo concluded that Mayor Lecaroz was
legally justified in not allowing Red to assume the position
of Kagawad.
On 1 October 1994 the Sandiganbayan denied the
motion for reconsideration of its decision filed by the
accused. This prompted herein petitioners to elevate their
cause to us charging that the Sandiganbayan erred:
First, in holding that Red had validly and effectively
assumed the office of KB Federation President by virtue of his
oath taken before then Assemblywoman Carmencita Reyes on
27 September 1985, and in concluding that the tenure of
( A p p o i n t m e n t ) | 57
accused Lenlie Lecaroz as president of the KB and his
coterminous term of office as KB representative to the SB had
accordingly expired;
Second, assuming arguendo that the term of office of
the accused Lenlie Lecaroz as youth representative to the SB
had expired, in holding that accused Lenlie Lecaroz could no
longer occupy the office, even in a holdover capacity, despite
the vacancy therein;
Third, granting arguendo that the tenure of the accused
Lenlie Lecaroz as federation president had expired, in holding
that by reason thereof accused Lenlie Lecaroz became legally
disqualified from continuing in office as KB Sectoral
Representative to the SB even in a holdover capacity;
Fourth, in not holding that under Sec. 2 of the Freedom
Constitution and pursuant to the provisions of the pertinent
Ministry of Interior and Local Governments (MILG)
interpretative circulars, accused Lenlie Lecaroz was legally
entitled and even mandated to continue in office in a holdover
capacity;
Fifth, in holding that the accused had committed the
crime of falsification within the contemplation of Art. 171
of The Revised Penal Code, and in not holding that the crime
of estafa of which they had been convicted required criminal
intent and malice as essential elements;
Sixth, assuming arguendo that the accused Lenlie
Lecaroz was not legally entitled to hold over, still the trial court
erred in not holding - considering the difficult legal questions
involved - that the accused acted in good faith and committed
merely an error of judgment, without malice and criminal
intent; and,
Seventh, in convicting the accused for crimes committed
in a manner different from that alleged in the Information
under which the accused were arraigned and tried.
The petition is meritorious. The basic propositions upon
which the Sandiganbayan premised its conviction of the
accused are: (a) although Jowil Red was duly elected KB
Chairman he could not validly assume a seat in the
Sanggunian as KB sectoral representative for failure to show
a valid appointment; and, (b) Lenlie Lecaroz who was the
incumbent KB representative could not hold over after his
term expired because pertinent laws do not provide for
holdover.
To resolve these issues, it is necessary to refer to the
laws on the terms of office of KB youth sectoral
representatives to the SB and of the KB Federation
Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the KB
Constitution respectively provide -
Sec. 7. Term of Office. - Unless sooner removed for cause, all
local elective officials hereinabove mentioned shall hold office
for a term of six (6) years, which shall commence on the first
Monday of March 1980.
In the case of the members of the sanggunian representing
the association of barangay councils and the president of the
federation of kabataang barangay, their terms of office shall
be coterminous with their tenure is president of their
respective association and federation .
LAW ON PUBLIC OFFICERS
xxxx
Sec 1. All incumbent officers of the Kabataang Barangay shall
continue to hold office until the last Sunday of November 1985
or such time that the newly elected officers shall have
qualified and assumed office in accordance with this
Constitution.
The theory of petitioners is that Red failed to qualify as
KB sectoral representative to the SB since he did not present
an authenticated copy of his appointment papers; neither did
he take a valid oath of office. Resultantly, this enabled
petitioner Lenlie Lecaroz to continue as member of the SB
although in a holdover capacity since his term had already
expired. The Sandiganbayan however rejected this postulate
declaring that the holdover provision under Sec. 1 quoted
above pertains only to positions in the KB, clearly implying
that since no similar provision is found in Sec. 7 of B.P. Blg.
51, there can be no holdover with respect to positions in the
SB.
We disagree with the Sandiganbayan. The concept of
holdover when applied to a public officer implies that the office
has a fixed term and the incumbent is holding onto the
succeeding term.[6] It is usually provided by law that officers
elected or appointed for a fixed term shall remain in office not
only for that term but until their successors have been elected
and qualified. Where this provision is found, the office does
not become vacant upon the expiration of the term if there is
no successor elected and qualified to assume it, but the
present incumbent will carry over until his successor is elected
and qualified, even though it be beyond the term fixed by
law.[7]
In the instant case, although BP Blg. 51 does not say
that a Sanggunian member can continue to occupy his post
after the expiration of his term in case his successor fails to
qualify, it does not also say that he is proscribed from holding
over. Absent an express or implied constitutional or statutory
provision to the contrary, an officer is entitled to stay in office
until his successor is appointed or chosen and has
qualified.[8] The legislative intent of not allowing holdover
must be clearly expressed or at least implied in the legislative
enactment,[9] otherwise it is reasonable to assume that the
law-making body favors the same.
Indeed, the law abhors a vacuum in public
offices,[10] and courts generally indulge in the strong
presumption against a legislative intent to create, by statute,
a condition which may result in an executive or administrative
office becoming, for any period of time, wholly vacant or
unoccupied by one lawfully authorized to exercise its
functions.[11] This is founded on obvious considerations of
public policy, for the principle of holdover is specifically
intended to prevent public convenience from suffering
because of a vacancy[12] and to avoid a hiatus in the
performance of government functions.[13]
The Sandiganbayan maintained that by taking his oath
of office before Assemblywoman Reyes in 1985 Red validly
assumed the presidency of the KB upon the expiration of the
term of Lenlie Lecaroz. It should be noted however that under
the provisions of the Administrative Code then in force,
specifically Sec. 21, Art. VI thereof, members of the then
Batasang Pambansa were not authorized to administer
oaths. It was only after the approval of RA No. 6733 [14]on 25
July 1989 and its subsequent publication in a newspaper of
general circulation that members of both Houses of Congress
were vested for the first time with the general authority to
( A p p o i n t m e n t ) | 58
administer oaths. Clearly, under this circumstance, the oath of
office taken by Jowil Red before a member of the Batasang
Pambansa who had no authority to administer oaths, was
invalid and amounted to no oath at all.
To be sure, an oath of office is a qualifying requirement
for a public office; a prerequisite to the full investiture with
the office.[15] Only when the public officer has satisfied the
prerequisite of oath that his right to enter into the position
becomes plenary and complete. Until then, he has none at
all. And for as long as he has not qualified, the holdover officer
is the rightful occupant. It is thus clear in the present case
that since Red never qualified for the post, petitioner Lenlie
Lecaroz remained KB representative to the Sanggunian, albeit
in a carry over capacity, and was in every aspect a de
jure officer,[16] or at least a de facto officer[17] entitled to
receive the salaries and all the emoluments appertaining to
the position. As such, he could not be considered an intruder
and liable for encroachment of public office. [18]
On the issue of criminal liability of petitioners, clearly the
offenses of which petitioners were convicted, i.e., estafa
through falsification of public documents under Art. 171, par.
4, of The Revised Penal Code, are intentional felonies for
which liability attaches only when it is shown that the
malefactors acted with criminal intent or malice. [19] If what is
proven is mere judgmental error on the part of the person
committing the act, no malice or criminal intent can be
rightfully imputed to him. Was criminal intent then
demonstrated to justify petitioners' conviction? It does not so
appear in the case at bar.
Ordinarily, evil intent must unite with an unlawful act for
a crime to exist. Actus non facit reum, nisi mens sit rea. There
can be no crime when the criminal mind is wanting. As a
general rule, ignorance or mistake as to particular facts,
honest and real, will exempt the doer from felonious
responsibility. The exception of course is neglect in the
discharge of a duty or indifference to consequences, which is
equivalent to a criminal intent, for in this instance, the element
of malicious intent is supplied by the element of negligence
and imprudence[20] In the instant case, there are clear
manifestations of good faith and lack of criminal intent on the
part of petitioners.
First. When Jowil Red showed up at the meeting of the
Sanggunian on 7 January 1986, what he presented to Mayor
Francisco Lecaroz was a mere telegram purportedly sent by
Imee Marcos-Manotoc informing him of his supposed
appointment to the SB, together with a photocopy of a "Mass
Appointment." Without authenticated copies of the
appointment papers, Red had no right to assume office as KB
representative to the Sanggunian, and petitioner Mayor
Lecaroz had every right to withhold recognition, as he did, of
Red as a member of the Sanggunian.
Second. It appears from the records that although Red
received his appointment papers signed by President Marcos
in January 1986, he forwarded the same to Mayor Francisco
Lecaroz only on 23 April 1986 during which time President
Marcos had already been deposed and President Aquino had
already taken over the helm of government. On 25 March
1986 the Freedom Constitution came into being providing in
Sec. 2 of Art. III thereof that -
Sec. 2. All elective and appointive officials and employees
under the 1973 Constitution shall continue in office until
otherwise provided by. proclamation or executive order or
upon the designation of their successors if such appointment
LAW ON PUBLIC OFFICERS
is made within a period of one (1) year from February 26,
1986 (underscoring supplied).
Duty bound to observe the constitutional mandate,
petitioner Francisco Lecaroz through the provincial governor
forwarded the papers of Jowil Red to then Minister of Interior
and Local Government Aquilino Pimentel, Jr., requesting
advice on the validity of the appointment signed by former
President Marcos. The response was the issuance of MILG
Provincial Memorandum-Circular No. 86-02[21] and
Memorandum-Circular No. 86-17 [22] stating that -
PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02
2. That newly elected KB Federation Presidents, without their
respective authenticated appointments from the president,
cannot, in any way, represent their associations in any
sangguniang bayan/sangguniang panlalawigan, as the case
may be, although they are still considered presidents of their
federations by virtue of the July 1985 elections.
MEMORANDUM CIRCULAR NO. 86-17
It is informed, however, that until replaced by the Office of
the President or by this Ministry the appointive members of
the various Sangguniang Bayan, Sangguniang Panlunsod, and
the Sangguniang Panlalawigan shall continue to hold office
and to receive compensation due them under existing laws,
rules and regulations.
The pertinent provisions of the Freedom Constitution
and the implementing MILG Circulars virtually confirmed the
right of incumbent KB Federation Presidents to hold and
maintain their positions until duly replaced either by the
President herself or by the Interior Ministry. Explicit therein
was the caveat that newly elected KB Federation Presidents
could not assume the right to represent their respective
associations in any Sanggunian unless their appointments
were authenticated by then President Aquino herself. Truly,
prudence impelled Mayor Lecaroz to take the necessary steps
to verify the legitimacy of Red's appointment to the
Sanggunian.
Third. Petitioners presented six (6) certified copies of
opinions of the Secretaries of Justice of Presidents Macapagal,
Marcos and Aquino concerning the doctrine of holdover. This
consistently expressed the view espoused by the executive
branch for more than thirty (30) years that the mere fixing of
the term of office in a statute without an express prohibition
against holdover is not indicative of a legislative intent to
prohibit it, in light of the legal principle that just as nature
abhors a vacuum so does the law abhor a vacancy in the
government.[23] Reliance by petitioners on these opinions, as
well as on the pertinent directives of the then Ministry of
Interior and Local Government, provided them with an
unassailable status of good faith in holding over and acting on
such basis; and,
Fourth. It is difficult to accept that a person, particularly
one who is highly regarded and respected in the community,
would deliberately blemish his good name, and worse, involve
his own son in a misconduct for a measly sum of P23,675.00,
such as this case before us. As aptly deduced by Justice Del
Rosario[24]
If I were to commit a crime, would I involve my son in it? And
if I were a town mayor, would I ruin my name for the measly
sum of P1,894.00 a month? My natural instinct as a father to
( A p p o i n t m e n t ) | 59
protect my own son and the desire, basic in every man, to
preserve one's honor and reputation would suggest a
resounding NO to both questions. But the prosecution
ventured to prove in these thirteen cases that precisely
because they were father and son and despite the relatively
small amount involved, accused Mayor Francisco Lecaroz
conspired with Lenlie Lecaroz to falsify several municipal
payrolls for the purpose of swindling their own town of the
amount of P1,894.00 a month, and the majority has found
them guilty. I find discomfort with this verdict basically for the
reason that there was no criminal intent on their part to falsify
any document or to swindle the government.
The rule is that any mistake on a doubtful or difficult
question of law may be the basis of good
faith.[25] In Cabungcal v. Cordova [26] we affirmed the doctrine
that an erroneous interpretation of the meaning of the
provisions of an ordinance by a city mayor does not amount
to bad faith that would entitle an aggrieved party to damages
against that official. We reiterated this principle in Mabutol v.
Pascual[27] which held that public officials may not be liable for
damages in the discharge of their official functions absent any
bad faith. Sanders v. Veridiano II[28] expanded the concept by
declaring that under the law on public officers, acts done in
the performance of official duty are protected by the
presumption of good faith.
In ascribing malice and bad faith to petitioner Mayor
Lecaroz, the Sandiganbayan cited two (2) circumstances
which purportedly indicated criminal intent. It pointed out that
the name of accused Lenlie Lecaroz was not in the municipal
payroll for the first quincena of 1986 which meant that his
term had finally ended, and that the reinstatement of Lenlie
Lecaroz by Mayor Francisco Lecaroz in the payroll periods
from 15 January 1986 and thereafter for the next twelve and
a half (12 -1/2) months was for no other purpose than to
enable him to draw salaries from the municipality. [29] There is
however no evidence, documentary or otherwise, that Mayor
Francisco Lecaroz himself caused the name of Lenlie Lecaroz
to be dropped from the payroll for the first quincena of
January 1986. On the contrary, it is significant that while
Lenlie Lecaroz' name did not appear in the payroll for the
first quincena of January 1986, yet, in the payroll for the
next quincena accused Lenlie Lecaroz was paid for both the
first and second quincenas, and not merely for the second half
of the month which would have been the case if he was
actually "dropped" from the payroll for the first fifteen (15)
days and then "reinstated" in the succeeding payroll period,
as held by the court a quo.
From all indications, it is possible that the omission was
due to the inadequate documentation of Red's appointment
to and assumption of office, or the result of a mere clerical
error which was later rectified in the succeeding payroll. This
however cannot be confirmed by the evidence at hand. But
since a doubt is now created about the import of such
omission, the principle of equipoise should properly
apply. This rule demands that all reasonable doubt intended
to demonstrate error and not a crime should be resolved in
favor of the accused. If the inculpatory facts and
circumstances are capable of two or more explanations, one
of which is consistent with the innocence of the accused and
the other with his guilt, then the evidence does not fulfill the
test of moral certainty and is not sufficient to support a
conviction.[30]
Petitioners have been convicted for falsification of public
documents through an untruthful narration of facts under Art.
171, par. 4, of The Revised Penal Code. For the offense to be
LAW ON PUBLIC OFFICERS
established, the following elements must concur: (a) the
offender makes in a document statements in a narration of
facts; (b) the offender has a legal obligation to disclose the
truth of the facts narrated; (c) the facts narrated by the
offender are absolutely false; and, (d) the perversion of truth
in the narration of facts was made with the wrongful intent of
injuring a third person.
The first and third elements of the offense have not
been established in this case. In approving the payment of
salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed
uniformly-worded certifications thus -
I hereby certify on my official oath that the above payroll is
correct, and that the services above stated have been duly
rendered. Payment for such services is also hereby approved
from the appropriations indicated.
When Mayor Lecaroz certified to the correctness of the
payroll, he was making not a narration of facts but a
conclusion of law expressing his belief that Lenlie Lecaroz was
legally holding over as member of the Sanggunian and thus
entitled to the emoluments attached to the position. This is an
opinion undoubtedly involving a legal matter, and any
"misrepresentation" of this kind cannot constitute the crime of
false pretenses.[31] In People v. Yanza[32]we ruled -
Now then, considering that when defendant certified she was
eligible for the position, she practically wrote a conclusion of
law which turned out to be inexact or erroneous - not entirely
groundless - we are all of the opinion that she may not be
declared guilty of falsification, specially because the law which
she has allegedly violated (Art. 171, Revised Penal Code, in
connection with other provisions), punishes the making of
untruthful statements in a narration of facts - emphasis on
facts x x x x Unfortunately, she made a mistake of judgment;
but she could not be held thereby to have intentionally made
a false statement of fact in violation of Art. 171 above-
mentioned.
The third element requiring that the narration of facts be
absolutely false is not even adequately satisfied as the belief
of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover
member of the Sanggunian was not entirely bereft of basis,
anchored as it was on the universally accepted doctrine of
holdover. La mera inexactitude no es bastante para integrar
este delito.[33] If the statements are not altogether false, there
being some colorable truth in them, the crime of falsification
is deemed not to have been committed.
Finally, contrary to the finding of the Sandiganbayan, we
hold that conspiracy was not proved in this case. The court a
quo used as indication of conspiracy the fact that the accused
Mayor certified the payrolls authorizing payment of
compensation to his son Lenlie Lecaroz and that as a
consequence thereof the latter collected his salaries. These
are not legally acceptable indicia, for they are the very same
acts alleged in the Informations as constituting the crime of
estafa through falsification. They cannot qualify as proof of
complicity or unity of criminal intent. Conspiracy must be
established separately from the crime itself and must meet
the same degree of proof, i.e., proof beyond reasonable
doubt. While conspiracy need not be established by direct
evidence, for it may be inferred from the conduct of the
accused before, during and after the commission of the crime,
all taken together however, the evidence must reasonably be
strong enough to show community of criminal design. [34]
( A p p o i n t m e n t ) | 60
 Perhaps subliminally aware of the paucity of evidence to
support it, and if only to buttress its finding of conspiracy, the
Sandiganbayan stressed that the two accused are father and
son. Granting that this is not even ad hominem, we are
unaware of any presumption in law that a conspiracy exists
simply because the conspirators are father and son or related
by blood.

WHEREFORE, the petition is GRANTED. The assailed

Decision of 7 October 1994 and Resolution of 1 October 1997
of the Sandiganbayan are REVERSED and SET ASIDE, and
petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ
are ACQUITTED of all the thirteen (13) counts of estafa
through falsification of public documents (Crim. Cases Nos.
13904-13916). The bail bonds posted for their provisional
liberty are cancelled and released. Costs de oficio.

SO ORDERED.

LAW ON PUBLIC OFFICERS ( A p p o i n t m e n t ) | 61