I.

GENERAL PRINCIPLES

1. Fernandez v Sto. Tomas

G.R. No. 116418 7 March 1995

Valid Delegation of Leg. Power Filling in the Details – Authority to Reorganize

FACTS:

In this Petition for Certiorari, Prohibition and Mandamus with Prayer for
a Temporary Restraining Order, petitioners Salvador C. Fernandez and Anicia
M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service
Commission (“Commission”) and the authority of the Commission to issue the
same.

Petitioner Fernandez was serving as Director of the Office of Personnel

Inspection and Audit (“OPIA”) while petitioner de Lima was serving as Director
of the Office of the Personnel Relations (“OPR”), both at the Central Office of the
Civil Service Commission in Quezon City, Metropolitan Manila. While
petitioners were so serving, Resolution No. 94-3710, signed by public
respondents Patricia A. Sto. Tomas and Ramon Ereneta, Jr., Chairman and
Commissioner, respectively, of the Commission, was issued on 7 June 1994.

During the general assembly of officers and employees of the

Commission held in the morning of 28 July 1994, Chairman Sto. Tomas, when
apprised of objections of petitioners, expressed the determination of the
Commission to implement Resolution No. 94-3710 unless restrained by higher
authority.

Petitioners then instituted this Petition. In a Resolution dated 23 August

1994, the Court required public respondents to file a Comment on the Petition.
On 21 September 1994, petitioners filed an Urgent Motion for Issuance of a
Temporary Restraining Order, alleging that petitioners had received Office
Orders from the Commission assigning petitioner Fernandez to Region V at
Legaspi City and petitioner de Lima to Region III in San Fernando, Pampanga
and praying that public respondents be restrained from enforcing these Office
Orders. The Court, in a Resolution dated 27 September 1994, granted this
Motion and issued the Temporary Restraining Order prayed for by petitioners.

The Commission filed its own Comment, dated 12 September 1994, on

the Petition and then moved to lift the Temporary Restraining Order. The Office
of the Solicitor General filed a separate Comment dated 28 November 1994,
defending the validity of Resolution No. 94-3710 and urging dismissal of the
Petition. Petitioners filed separate Replies to these Comments. The Commission
in turn filed a Rejoinder (denominated “Comment [on] the Reply”).
ISSUES:

A.) Whether or not the Civil Service Commission had legal authority to

issue Resolution No. 94-3710 to the extent it merged the OCSS [Office of
Career Systems and Standards], the OPIA [Office of Personnel Inspection and
Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research
and Development Office]; and 

B.) Whether or not Resolution No. 94-3710 violated petitioners’

constitutional right to security of tenure. 

HELD: 

A.) YES. The objectives sought by the Civil Service Commission in

enacting Resolution No. 94-3710 were described in that Resolution in broad
terms as “effect[ing] changes in the organization to streamline [the
Commission’s] operations and improve delivery of service.” These changes
in internal organization were rendered necessary by, on the one hand, the
decentralization and devolution of the Commission’s functions effected by the
creation of fourteen (14) Regional Offices and ninety-five (95) Field Offices of
the Commission throughout the country, to the end that the Commission and
its staff may be brought closer physically to the government employees that
they are mandated to serve. In the past, its functions had been centralized in
the Head Office of the Commission in Metropolitan Manila and Civil Service
employees all over the country were compelled to come to Manila for the
carrying out of personnel transactions.

Upon the other hand, the dispersal of the functions of the Commission to
the Regional Offices and the Field Offices attached to various governmental
agencies throughout the country makes possible the implementation of new
programs of the Commission at its Central Office in Metropolitan Manila. It
thus appears to the Court that the Commission was moved by quite legitimate
considerations of administrative efficiency and convenience in promulgating
and implementing its Resolution No. 94-3710 and in assigning petitioner
Salvador C. Fernandez to the Regional Office of the Commission in Region V in
Legaspi City and petitioner Anicia M. de Lima to the Commission’s Regional
Office in Region III in San Fernando, Pampanga. It is also clear to the Court
that the changes introduced and formalized through Resolution No. 94-3710 —
re-naming of existing Offices; re-arrangement of the groupings of Divisions and
Sections composing particular Offices; re-allocation of existing functions (and
related personnel, budget, etc.) among the re-arranged Offices — are precisely
the kind of internal changes which are referred to in Section 17 (Book V, Title I,
Subtitle A, Chapter 3) of the 1987 REVISED ADMINISTRATIVE CODE, quoted
above, as “changes in the organization” of the Commission.

The term “public office” is frequently used to refer to the right, authority
and duty, created and conferred by law, by which, for a given period either
fixed by law or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of government, to be
exercised by that individual for the benefit of the public [Appari vs. Court of
Appeals, 127 SCRA 231 (1984); Oliveros v.Villaluz, 57 SCRA 163
(1974); Fernandez vs. Ledesma, 117 Phil. 630 (1963); Alba vs.Evangelista, 100
Phil. 683 (1957)]. This Court considers that Resolution No. 94-3710
has not abolished any public office as that term is used in the law of public
officers. It is essential to note that none of the “changes in organization”
introduced by Resolution No. 94-3710 carried with it or necessarily involved
the termination of the relationship of public employment between the
Commission and any of its officers and employees.

It is very difficult to suppose that the 1987 REVISED ADMINISTRATIVE

CODE having mentioned fourteen (14) different “Offices” of the Civil Service
Commission, meant to freeze those Offices and to cast in concrete, as it were,
the internal organization of the Commission until it might please Congress to
change such internal organization regardless of the ever changing needs of the
Civil Service as a whole.

To the contrary, the legislative authority had expressly authorized the

Commission to carry out “changes in the organization,” “as the need [for such
changes] arises.” Assuming, for purposes of argument merely, that legislative
authority was necessary to carry out the kinds of changes contemplated in
Resolution No. 94-3710 (and the Court is not saying that such authority is
necessary), such legislative authority was validly delegated to the Commission
by Section 17 earlier quoted. The legislative standards to be observed and
respected in the exercise of such delegated authority are set out not only in
Section 17 itself (i.e., “as the need arises”), but also in the Declaration of
Policies found in Book V, Title I, Subtitle A, Section 1 of the REVISED
ADMINISTRATIVE CODE which required the Civil Service Commission “as the
central personnel agency of the Government [to] establish a career service,
adopt measures to promote — efficiency — [and] responsiveness . . . in the
civil service . . . and that personnel functions shall
be decentralized, delegating the corresponding authority to
the departments, offices and agencies where such functions can be effectively
performed.”

B.) NO. Appointments to the staff of the Commission are not

appointments to a specified public office but rather appointments to particular
positions or ranks. Thus, a person may be appointed to the position of Director
III or Director IV; or to the position of Attorney IV or Attorney V; or to the
position of Records Officer I or Records Officer II; and so forth. In the instant
case, petitioners were each appointed to the position of Director IV, without
specification of any particular office or station.

The same is true with respect to the other persons holding the same
position or rank of Director IV of the Commission. Section 26(7), Book V, Title
I, Subtitle A of the 1987 REVISED ADMINISTRATIVE CODE  recognizes
reassignment as a management prerogative vested in the Commission and, for
that matter, in any department or agency of government embraced in the civil
service:

“Sec. 26. Personnel Actions. — . . . As used in this Title, any action

denoting the movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include appointment through
certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion, and separation. All personnel actions shall be in
accordance with such rules, standards, and regulations as may be promulgated
by the Commission. . . . (7) Reassignment. An employee may be reassigned from
one organizational unit to another in the same agency; Provided, That such
reassignment shall not involve a reduction in rank, status and salary.”

It follows that the reassignment of petitioners Fernandez and de Lima

from their previous positions in OPIA and OPR, respectively, to the Research
and Development Office (RDO) in the Central Office of the Commission in
Metropolitan Manila and their subsequent assignment from the RDO to the
Commission’s Regional Offices in Regions V and III had been effected with
express statutory authority and did not constitute removals without lawful
cause.

It also follows that such reassignment did not involve any violation of the

constitutional right of petitioners to security of tenure considering that they
retained their positions of Director IV and would continue to enjoy the same
rank, status and salary at their new assigned stations which they had enjoyed
at the Head Office of the Commission in Metropolitan Manila. Petitioners had
not, in other words, acquired a vested right to serve at the Commission’s Head
Office. The above conclusion is compelled not only by the statutory provisions
relevant in the instant case, but also by a long line of cases decided by this
Court in respect of different agencies or offices of government.
Alba v. Evangelista, G.R No. L-10360 and L-10433, January 17, 1957
PRINCIPLE: It is an established rule that when the law authorizes a superior
officer to remove a
subordinate at pleasure his discretion in the exercise of the power of removal is
absolute. As long
as the removal is effected in accordance with the procedure prescribed by law,
it may not be
declared invalid by the courts, no matter how reprehensible and unjust the
motives of the
removal might be
PARTIES:
Petitioner: Alba
-
Respondent: Evangelista (judge lower court) and Alajar
-
TICKER: President, nag nag appoint ng bagong vice mayor. Incumbent Vice
Mayor sibak.
FACTS:
On January 1, 1954, the President of the Philippines appointed Vivencio Alajar
as Vice-
Mayor of the City of Roxas. He took his oath and assumed office on January 6,
1954; on
March 31 of that year, his appointment was confirmed by the Commission on
Appointment
and he continued holding office until
-
November, 1955, Alajar received a communication from Assistant Executive
Secretary
Enrique C. Quema informing him that the President had designated Juliano
Alba in his stead
as Acting Vice-Mayor of the City of Roxas and requesting him to turn over his
said office to
Mr. Alba effective immediately.
-
On the other hand, Executive Secretary Fred Ruiz Castro addressed Juliano A.
Alba a
communication through the Mayor of the City of Roxas wherein Alba was
informed that the
President has designated him as Acting Vice-Mayor of the City of Roxas vice
Vivencio Alajar,
and instructed him to qualify and enter upon the performance of the office,
furnishing the
Commissioner of Civil Service with the copy of his oath.
-
On November 19, 1955, Juliano A. Alba took his oath and assumed office
-
Alajar instituted quo warranto proceedings, stating:
1. Alba usurped the vice mayor office.
2. There was no vacancy at the time of appointment
3. There was no legal cause or reason for the removal of Alajar
-
Lower Court: Alajar could keep the position. Alba appealed.
-
In the meantime, Alajar filed a petition for execution of judgment, granted by
the court, but
the decision was not executed because Alba appealed to the SC.
-
Supreme Court: Alba asked for a preliminary injuction from Alajar taking the
position, until
the final decision was made.
-
Solicitor General: wanted to intervene because he was not able to defend the
constitutionality of RA 603 in the lower court. Section 8 of RA 603 declares the
vice
mayorship of Roxas city to be terminable at the pleasure of the appointing
authority
-
Alba argued that the trial court erred:
1. Predicated decision on mistaken assumption that Alba belonged to the
unclassified
civil service
2. Not declaring without the necessity of making a pronouncement of its
validity, that
RA 608 was intended to exclude the office of Roxas City from persons belonging
to
the unclassified service
3. Not declaring that n the case of Jover v Borra, SC passed upon the validity of
section 8.
4. Holding that the office of vice-mayor is neither primarily confidential nor
policy-
determining
5. Not holding that RA 603 section 9 was a valid exercise of Congress by the
-
Alba v. Evangelista
Tuesday, 10 May 2022
9:28 am

PO cases Page 1

Alba v. Evangelista, G.R No. L-10360 and L-10433, January 17, 1957
PRINCIPLE: It is an established rule that when the law authorizes a superior
officer to remove a
subordinate at pleasure his discretion in the exercise of the power of removal is
absolute. As long
as the removal is effected in accordance with the procedure prescribed by law,
it may not be
declared invalid by the courts, no matter how reprehensible and unjust the
motives of the
removal might be
PARTIES:
Petitioner: Alba
-
Respondent: Evangelista (judge lower court) and Alajar
-
TICKER: President, nag nag appoint ng bagong vice mayor. Incumbent Vice
Mayor sibak.
FACTS:
On January 1, 1954, the President of the Philippines appointed Vivencio Alajar
as Vice-
Mayor of the City of Roxas. He took his oath and assumed office on January 6,
1954; on
March 31 of that year, his appointment was confirmed by the Commission on
Appointment
and he continued holding office until
-
November, 1955, Alajar received a communication from Assistant Executive
Secretary
Enrique C. Quema informing him that the President had designated Juliano
Alba in his stead
as Acting Vice-Mayor of the City of Roxas and requesting him to turn over his
said office to
Mr. Alba effective immediately.
-
On the other hand, Executive Secretary Fred Ruiz Castro addressed Juliano A.
Alba a
communication through the Mayor of the City of Roxas wherein Alba was
informed that the
President has designated him as Acting Vice-Mayor of the City of Roxas vice
Vivencio Alajar,
and instructed him to qualify and enter upon the performance of the office,
furnishing the
Commissioner of Civil Service with the copy of his oath.
-
On November 19, 1955, Juliano A. Alba took his oath and assumed office
-
Alajar instituted quo warranto proceedings, stating:
1. Alba usurped the vice mayor office.
2. There was no vacancy at the time of appointment
3. There was no legal cause or reason for the removal of Alajar
-
Lower Court: Alajar could keep the position. Alba appealed.
-
In the meantime, Alajar filed a petition for execution of judgment, granted by
the court, but
the decision was not executed because Alba appealed to the SC.
-
Supreme Court: Alba asked for a preliminary injuction from Alajar taking the
position, until
the final decision was made.
-
Solicitor General: wanted to intervene because he was not able to defend the
constitutionality of RA 603 in the lower court. Section 8 of RA 603 declares the
vice
mayorship of Roxas city to be terminable at the pleasure of the appointing
authority
-
Alba argued that the trial court erred:
1. Predicated decision on mistaken assumption that Alba belonged to the
unclassified
civil service
2. Not declaring without the necessity of making a pronouncement of its
validity, that
RA 608 was intended to exclude the office of Roxas City from persons belonging
to
the unclassified service
3. Not declaring that n the case of Jover v Borra, SC passed upon the validity of
section 8.
4. Holding that the office of vice-mayor is neither primarily confidential nor
policy-
determining
5. Not holding that RA 603 section 9 was a valid exercise of Congress by the
-
Alba v. Evangelista
Tuesday, 10 May 2022
9:28 am

PO cases Page 1

Alba v. Evangelista, G.R No. L-10360 and L-10433, January 17, 1957
PRINCIPLE: It is an established rule that when the law authorizes a superior
officer to remove a
subordinate at pleasure his discretion in the exercise of the power of removal is
absolute. As long
as the removal is effected in accordance with the procedure prescribed by law,
it may not be
declared invalid by the courts, no matter how reprehensible and unjust the
motives of the
removal might be
Alba v. Evangelista, G.R No. L-10360 and L-10433, January 17, 1957
PRINCIPLE: It is an established rule that when the law authorizes a superior
officer to remove a
subordinate at pleasure his discretion in the exercise of the power of removal is
absolute. As long
as the removal is effected in accordance with the procedure prescribed by law,
it may not be
declared invalid by the courts, no matter how reprehensible and unjust the
motives of the
removal might b

II. MODES OF ACQUIRING TITLE TI PUBLIC OFFICE

2. FARIÑAS VS EXECUTIVE SECRETARY

G.R. No. 147387

(BY ELECTION)

NATURE OF THE CASE:

Petitions under Rule 65 of the Rules of Court, as amended, seeking to

declare as unconstitutional Section 14 of Republic Act No. 9006 (The Fair
Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg.
881 (The Omnibus Election Code) which provides:
 SEC. 67. Candidates holding elective office. – Any elective official,
whether national or local, running for any office other than the one which he is
holding in a permanent capacity, except for President and Vice-President, shall
be considered ipso facto resigned from his office upon the filing of his certificate
of candidacy.

FACTS:

The petitioners now come to the Court alleging in the main that Section
14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus
Election Code, is unconstitutional for being in violation of Section 26(1), Article
VI of the Constitution, requiring every law to have only one subject which
should be expressed in its title.

According to the petitioners, the inclusion of Section 14 repealing Section

67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed
rider. 

They point out the dissimilarity in the subject matter of Rep. Act No.
9006, on the one hand, and Section 67 of the Omnibus Election Code, on the
other. Rep. Act No. 9006 primarily deals with the lifting of the ban on the use
of media for election propaganda and the elimination of unfair election
practices, while Section 67 of the Omnibus Election Code imposes a limitation
on elective officials who run for an office other than the one they are holding in
a permanent capacity by considering them as ipso facto resigned therefrom
upon filing of the certificate of candidacy. The repeal of Section 67 of the
Omnibus Election Code is thus not embraced in the title, nor germane to the
subject matter of Rep. Act No. 9006.

The petitioners also assert that Section 14 of Rep. Act No. 9006 violates
the equal protection clause of the Constitution because it repeals Section 67
only of the Omnibus Election Code, leaving intact Section 66 thereof which
imposes a similar limitation to appointive officials, thus:

SEC. 66. Candidates holding appointive office or position. – Any person

holding a public appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in government-
owned or controlled corporations, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.

They contend that Section 14 of Rep. Act No. 9006 discriminates against
appointive officials. By the repeal of Section 67, an elective official who runs for
office other than the one which he is holding is no longer considered ipso
facto resigned therefrom upon filing his certificate of candidacy. Elective
officials continue in public office even as they campaign for reelection or
election for another elective position.

On the other hand, Section 66 has been retained; thus, the limitation on
appointive officials remains - they are still considered ipso facto resigned from
their offices upon the filing of their certificates of candidacy.

The petitioners assert that Rep. Act No. 9006 is null and void in its
entirety as irregularities attended its enactment into law. The law, not only
Section 14 thereof, should be declared null and void. Even Section 16 of the
law which provides that “[t]his Act shall take effect upon its approval” is a
violation of the due process clause of the Constitution, as well as
jurisprudence, which require publication of the law before it becomes effective.

Finally, the petitioners maintain that Section 67 of the Omnibus Election

Code is a good law; hence, should not have been repealed. The petitioners cited
the ruling of the Court in Dimaporo v. Mitra, Jr.,[13] that Section 67 of the
Omnibus Election Code is based on the constitutional mandate on the
“Accountability of Public Officers:”

Sec. 1.    Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice,
and lead modest lives.

Consequently, the respondents Speaker and Secretary General of the

House of Representatives acted with grave abuse of discretion amounting to
excess or lack of jurisdiction for not considering those members of the House
who ran for a seat in the Senate during the May 14, 2001 elections as ipso
facto resigned therefrom, upon the filing of their respective certificates of
candidacy.

ISSUES:

W/N Section 14 of Rep. Act No. 9006 Is a Rider.

W/N Section 14 of Rep. Act No. 9006 Is Violative of the Equal Protection
Clause of the Constitution.

W/N Section 16 of the law which provides that “[t]his Act shall take effect
upon its approval” is a violation of the due process clause of the Constitution,
as well as jurisprudence, which require publication of the law before it becomes
effective.
HELD:

In determining whether there has been compliance with the

constitutional requirement that the subject of an act shall be expressed in its
title, the Court laid down the rule that –Constitutional provisions relating to
the subject matter and titles of statutes should not be so narrowly construed
as to cripple or impede the power of legislation. The requirement that the
subject of an act shall be expressed in its title should receive a reasonable and
not a technical construction.

It is sufficient if the title be comprehensive enough reasonably to include

the general object which a statute seeks to effect, without expressing each and
every end and means necessary or convenient for the accomplishing of that
object. Mere details need not be set forth. The title need not be an abstract or
index of the Act. The title of Rep. Act No. 9006 reads: “An Act to Enhance the
Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair
Election Practices.”

The Court is convinced that the title and the objectives of Rep. Act No.
9006 are comprehensive enough to include the repeal of Section 67 of the
Omnibus Election Code within its contemplation. To require that the said
repeal of Section 67 of the Code be expressed in the title is to insist that the
title be a complete index of its content.

The purported dissimilarity of Section 67 of the Omnibus Election Code,

which imposes a limitation on elective officials who run for an office other than
the one they are holding, to the other provisions of Rep. Act No. 9006, which
deal with the lifting of the ban on the use of media for election propaganda,
does not violate the “one subject-one title” rule.
This Court has held that an act having a single general subject, indicated
in the title, may contain any number of provisions, no matter how diverse they
may be, so long as they are not inconsistent with or foreign to the general
subject, and may be considered in furtherance of such subject by providing for
the method and means of carrying out the general subject.

The legislators considered Section 67 of the Omnibus Election Code as a

form of harassment or discrimination that had to be done away with and
repealed. The executive department found cause with Congress when the
President of the Philippines signed the measure into law. For sure, some
sectors of society and in government may believe that the repeal of Section 67
is bad policy as it would encourage political adventurism. But policy matters
are not the concern of the Court. Government policy is within the exclusive
dominion of the political branches of the government. It is not for this Court to
look into the wisdom or propriety of legislative determination.
 Indeed, whether an enactment is wise or unwise, whether it is based on
sound economic theory, whether it is the best means to achieve the desired
results, whether, in short, the legislative discretion within its prescribed limits
should be exercised in a particular manner are matters for the judgment of the
legislature, and the serious conflict of opinions does not suffice to bring them
within the range of judicial cognizance. Congress is not precluded from
repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra upholding
the validity of the provision and by its pronouncement in the same case that
the provision has a laudable purpose. Over time, Congress may find it
imperative to repeal the law on its belief that the election process is thereby
enhanced and the paramount objective of election laws – the fair, honest and
orderly election of truly deserving members of Congress – is achieved.

Substantial distinctions clearly exist between elective officials and

appointive officials. The former occupy their office by virtue of the mandate of
the electorate. They are elected to an office for a definite term and may be
removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.

Finally, the “Effectivity” clause (Section 16) of Rep. Act No. 9006 which
provides that it “shall take effect immediately upon its approval,” is defective.
However, the same does not render the entire law invalid. In Tañada v.
Tuvera, this Court laid down the rule:

... the clause “unless it is otherwise provided” refers to the date of

effectivity and not to the requirement of publication itself, which cannot in any
event be omitted. This clause does not mean that the legislator may make the
law effective immediately upon approval, or on any other date without its
previous publication.

Publication is indispensable in every case, but the legislature may in its

discretion provide that the usual fifteen-period shall be shortened or
extended….

Following Article 2 of the Civil Code and the doctrine enunciated

in Tañada, Rep. Act No. 9006, notwithstanding its express statement, took
effect fifteen days after its publication in the Official Gazette or a newspaper of
general circulation.

Thus, it bears reiterating that one of the firmly entrenched principles in

constitutional law is that the courts do not involve themselves with nor delve
into the policy or wisdom of a statute. That is the exclusive concern of the
legislative branch of the government. When the validity of a statute is
challenged on constitutional grounds, the sole function of the court is to
determine whether it transcends constitutional limitations or the limits of
legislative power. No such transgression has been shown in this case.

3. BINAMIRA v GARRUCHO
G.R. No. 92008

(BY APPOINTMENT)

BACKGROUND:

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.

FACTS:

April 7, 1986, Binamira, through a memorandum, was designated as

General Manager of the Philippine Tourism Authority (PTA) by Jose Antonio
Gonzales, Minister of Tourism and Chairman, P.T.A Board. Minister Gonzales
sought approval from President Corazon Aquino of the Board of Directors of the
PTA including Binamira as Vice President. But 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.

On January 4, 1990, President Aquino sent Garrucho a memorandum,

copy furnished Binamira which states:

“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 (Garrucho) 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.” Garrucho having taken over as
General Manager of the PTA in accordance with this
memorandum, Binamira 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.

ISSUE:

WON power of appointment of a General Manager can be delegated.

RULING:

NO. Designation may also be loosely defined as an appointment because

it likewise involves the naming of a particular person to a specified public office
BUT it cannot be construed to have the same meaning. DESIGNATION
connotes merely the imposition by law of additional duties on an incumbent
official and an implication that he shall hold the office only in temporary
capacity and may be replaced at will by the appointing authority while
APPOINTMENT is defines as the selection, by 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.

Sec. 23-A of P.D 564 states that “The General Manager shall be
appointed by the President of the Philippines and shall serve for the period of
six 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.”

Appointment involves discretion, which because of its nature cannot be

delegated. An office to whom discretion is entrusted cannot delegate it to
another, the presumption being that he was chosen because he was deemed fit
and competent to exercise that judgment and discretion.

Binamira was not appointed by the President but only designated by the
Minister of Tourism. It was not possible for Minister Gonzales to assume the
exercise of that discretion as an alter ego of the President. The appointment
(designation) of Binamira was not merely a mechanical or ministerial act that
could be performed by a subordinate even if he happened to be a member of
the Cabinet.

4. LUEGO v. CSC
G.R. L-69137

(NATURE OF APPOINTMENTS)
FACTS:

The petitioner was appointed Administrative Officer 11, Office of the City
Mayor, Cebu City, by Mayor Florentino Solon on February 18, 1983. The
appointment was described as “permanent” but the CSC approved it as
“temporary” which was subject to the final action taken in the protest filed by
private respondent, Tuozon.

After protracted hearings, the CSC found private respondent better

qualified than the petitioner for the disputed position. CSC thereafter directed
Tuozo be appointed as Administrative Officer 11, in place of Luego. The newly
elected Mayor Duterte appointed Tuozo. The Solicitor General, rather than face
the question squarely, says the petitioner could be validly replaced in the
instant case because his appointment was temporary and therefore could be
withdrawn at will, with or without cause. Having accepted such an
appointment, it is argued, the petitioner waived his security of tenure and
consequently ran the risk of an abrupt separation from his office without
violation of the Constitution.

ISSUE:

WON the Civil Service Commission is 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?

HELD:

No. The appointment of the petitioner was not temporary but permanent
and was therefore protected by Constitution. The appointing authority
indicated that it was permanent, as he had the right to do so, and it was not
for the respondent Civil Service Commission to reverse him and call it
temporary.

The Civil Service Commission is not empowered to determine the kind or

nature of the appointment extended by the appointing officer, its authority
being limited to approving or reviewing the appointment in the light of the
requirements of the Civil Service Law. When the appointee is qualified and
authorizing the other legal requirements are satisfied, the Commission has no
choice but to attest to the appointment in accordance with the Civil Service
Laws.

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.

It is understandable if one is likely to be misled by 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.

However, 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.

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.

WHEREFORE, the resolution of the respondent Commission on Civil

Service dated March 22, 1984, is set aside, and the petitioner is hereby
declared to be entitled to the office in dispute by virtue of his permanent
appointment thereto dated February 18, 1983

5. GARCES v. CA
G.R. No. 114795

(REQUISITES FOR A VALID APPOINTMENTS)

1. ADMINISTRATIVE LAW; LAW OF PUBLIC OFFICERS; A TRANSFER

WITHOUT CONSENT IS TANTAMOUNT TO REMOVAL. — A transfer requires a
prior appointment. If the transfer was made without the consent of the official
concerned, it is tantamount to removal without valid cause contrary to the
fundamental guarantee on non-removal except for cause.
 2. ID.; ID.; ACCEPTANCE; INDISPENSABLE TO COMPLETE AN
APPOINTMENT. — Acceptance, it must be emphasized, is indispensable to
complete an appointment.

3. ID.; ID.; THERE CAN BE NO APPOINTMENT TO A NON-VACANT

POSITION. — It is a basic precept in the law of public officers that "no person,
no matter how qualified and eligible he is for a certain position may be
appointed to an office which is not vacant. There can be no appointment to a
non-vacant position. The incumbent must first be legally removed, or his
appointment validly terminated before one could be validly installed to succeed
him.

4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; QUO WARRANTO

DISTINGUISHED FROM MANDAMUS. — Quo warranto tests the title to one’s
office claimed by another and has as its object the ouster of the holder from its
enjoyment, while mandamus avails to enforce clear legal duties and not to try
disputed titles.

FACTS:

Petitioner Lucita Garces was appointed Election Registrar of Gutalac,

Zamboanga del Norte on July 27, 1986. She was to replace respondent Election
Registrar Claudio Concepcion, who, in turn, was transferred to Liloy,
Zamboanga del Norte.

Correspondingly approved by the Civil Service Commission, both

appointments were to take effect upon assumption of office. Concepcion,
however, refused to transfer post as he did not request for it.

Garces, on the other hand, was directed by the Office of Assistant

Director for Operations to assume the Gutalac post. But she was not able to do
so because of a Memorandum issued by respondent Provincial Election
Supervisor Salvador Empeynado that prohibited her from assuming office in
Gutalac as the same is not vacant.

On February 24, 1987, Garces was directed by the same Office of

Assistant Director to defer her assumption of the Gutalac post. On April 15,
1987, she received a letter from the Acting Manager, Finance Service
Department, with an enclosed check to cover for the expenses on construction
of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac,
Zamboanga del Norte" which Garces interpreted to mean as superseding the
defendant order. Meanwhile, since respondent Concepcion continued
occupying the Gutalac office, the COMELEC en banc cancelled his
appointment to Liloy.
 On February 26, 1988, Garces filed before the RTC a petition for
mandamus with preliminary prohibitory and mandatory injunction and
damages against Empeynado and Concepcion, among others. Meantime, the
COMELEC en banc through a Resolution dated June 3, 1988, resolved to
recognize respondent Concepcion as the Election Registrar of Gutalac, and
ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy
be cancelled.

In view thereof, respondent Empeynado moved to dismiss the petition for

mandamus alleging that the same was rendered moot and academic by the
said COMELEC Resolution, and that the case is cognizable only by the
COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution.

The RTC, thereafter, dismissed the petition for mandamus on two

grounds, viz., (1) that quo warranto is the proper remedy, and (2) that the
"cases" or "matters" referred under the constitution pertain only to those
involving the conduct of elections. On appeal, respondent CA affirmed the
RTC’s dismissal of
the case

ISSUES:

1. WON petitioner’s action for mandamus proper?

2. WON this case cognizable by the RTC or by the Supreme Court?

On the first issue, Garces claims that she has a clear legal right to the
Gutalac post which was deemed vacated at the time of her appointment and
qualification. Garces insists that the vacancy was created by Section 2, Article
III of the Provisional Constitution. On the contrary, Concepcion posits that he
did not vacate his Gutalac post as he did not accept the transfer to Liloy.

Article III Section 2 of the Provisional Constitution

provides:jgc:chanrobles.com.ph

"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 or appointment and qualification of
their successors, if such is made within a period of one year from February 25,
1986."

The above organic provision did not require any cause for removal of an
appointive official under the 1973 Constitution. The transition period from the
old to the new Constitution envisioned an "automatic" vacancy; hence the
government is not hard put to prove anything plainly and simply because the
Constitution allows it.

Mere appointment and qualification of the successor removes an

incumbent from his post. Nevertheless, the government in an act of auto-
limitation and to prevent indiscriminate dismissal of government personnel
issued on May 28, 1986, Executive Order (E.O.) No. 17.

This executive order, which applies in this case as it was passed prior to
the issuance of Concepcion’s transfer order, enumerates five grounds for
separation or replacement of elective and appointive officials authorized under
Article III, Section 2 of the Provisional Constitution, to
wit:jgc:chanrobles.com.ph

"1. Existence of a case for summary dismissal pursuant to Section 40 of

the Civil Service Law;

2. Existence of the probable cause for violation of the Anti-Graft and

Corrupt Practices Act as determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to

remain in the service or his separation/replacement is in the interest of the
service."cralaw virtua1aw library

Not one of those grounds was alleged to exist, much less proven by
petitioner when respondent Concepcion was transferred from Gutalac to Liloy.
More, Concepcion was transferred without his consent. A transfer requires a
prior appointment. If the transfer was made without the consent of the official
concerned, it is tantamount to removal without valid cause contrary to the
fundamental guarantee on non-removal except for cause.

Concepcion’s transfer thus becomes legally infirm and without effect for
he was not validly terminated. His appointment to the Liloy post, in fact, was
incomplete because he did not accept it. Acceptance, it must be emphasized, is
indispensable to complete an appointment.

Corollarily, Concepcion’s post in Gutalac never became vacant. It is a

basic precept in the law of public officers that "no person, no matter how
qualified and eligible he is for a certain position may be appointed to an office
which is not vacant.
 There can be no appointment to a non-vacant position. The incumbent
must first be legally removed, or his appointment validly terminated before one
could be validly installed to succeed him. Further, Garces’ appointment was
ordered to be deferred by the COMELEC.

The deferment order, we note, was not unequivocably lifted. Worse, her
appointment to Gutalac was even cancelled by the COMELEC en banc.
These factors negate Garces’ claim for a well-defined, clear, certain legal right
to the Gutalac post. On the contrary, her right to the said office is manifestly
doubtful and highly questionable. As correctly ruled by respondent court,
mandamus, which petitioner filed below, will not lie as this remedy applies only
where petitioner’s right is founded clearly in law and not when it is doubtful.
24 It will not issue to give him something to which he is not clearly and
conclusively entitled.

Considering that Concepcion continuously occupies the disputed

position and exercises the corresponding functions therefor, the proper remedy
should have been quo warranto and not mandamus.Quo warranto tests the
title to one’s office claimed by another and has as its object ouster of the holder
from its enjoyment, while mandamus avails to enforce clear legal duties and
not to try disputed.

Garces’ heavy reliance with the 1964 Tulawie case is misplaced for
material and different factual considerations. Unlike in this case, the disputed
office of "Assistant Provincial Agriculturist" in the case of Tulawie is clearly
vacant and petitioner Tulawie’s appointment was confirmed by the higher
authorities making his claim to the disputed position clear and certain.

Tulawie’s petition for mandamus, moreover, was against the Provincial

Agriculturist who never claimed title to the contested office.

In this case, there was no vacancy in the Gutalac post and petitioner’s
appointment to which she could base her claim was revoked making her claim
uncertain. Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado 29

contending that this is a "case" or "matter" cognizable by the COMELEC under
Sec. 7 Art. IX-A of the 1987 Constitution.

The COMELEC resolution cancelling the appointment of Garces as

Election Registrar of Gutalac, he argues, should be raised only
on certiorari before the Supreme Court and not before the RTC, else the latter
court becomes a reviewer of an en banc COMELEC resolution contrary to Sec.
7, Art. IX-A. The contention is without merit. Sec. 7, Art. IX-A of the
Constitution provides:jgc:chanrobles.com.ph

"Each commission shall decide by a majority vote of all its members any
case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the commission or by the commission
itself. Unless otherwise provided by this constitution or by law, any decision,
order, or ruling of each commission may be brought to the supreme court
on certiorari by the aggrieved party within thirty days from receipt of a copy
thereof."cralaw virtua1aw library

This provision is inapplicable as there was no case or matter filed before

the COMELEC. On the contrary, it was the COMELEC’s resolution that
triggered this controversy. The "case" or "matter" referred to by the constitution
must be something within the jurisdiction of the COMELEC, i.e., must pertain
to an election dispute. the settled rule is that "decision. rulings, order" of the
COMELEC that may be brought to the Supreme Court on certiorariunder Sec.
7, Art. IX-A are those relate to the COMELEC’s exercise of its adjudicatory or
quasi-judicial powers 30 involving "elective regional, provincial and city
officials."

In this case, what is being assailed is the COMELEC’s choice of an

appointee to occupy the Gutalac Post which is an administrative duty done for
the operational set-up of an agency.

The controversy involves an appointive, not an elective, official. Hardly

can this matter call for the certiorari jurisdiction of the Supreme Court. To rule
otherwise surely burden the Court with trivial administrative questions that
are best ventilated before the RTC, a court which the law vests with the power
to exercise original jurisdiction over "all cases not within the exclusive
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-
judicial functions."

WHEREFORE, premises considered, the petition for review is hereby

DENIED without prejudice to the filing of the proper action with the
appropriate body.

III. MODES AND KINDS OF APPOINTMENT

6. ACHACOSO VS. MACARAIG

G.R. NO. 93023
 (PERMANENT APPOINTMENT)

FACTS:

Tomas D. Achacoso was appointed Administrator of the Philippine

Overseas Employment Administration on October 16, 1987, and assumed
office on October 27, 1987. On January 2, 1990, in compliance with a request
addressed by the President of the Philippines to “all Department Heads,
Undersecretaries, Assistant Secretaries, Bureau Heads,” and other government
officials, he filed a courtesy resignation. This was accepted by the President on
April 3, 1990, “with deep regrets.” On April 10, 1990, the Secretary of Labor
requested him to turn over his office to the Deputy Administrator as officer-in-
charge.

In a letter dated April 19, 1990, he protested his replacement and

declared he was not surrendering his office because his resignation was not
voluntary but filed only in obedience to the President’s directive. On the same
date, respondent Jose N. Sarmiento was appointed Administrator of the POEA,
vice the petitioner. Achacoso was informed thereof the following day and was
again asked to vacate his office. He filed a motion for reconsideration on April
23, 1990, but this was denied on April 30, 1990. He then came to this Court
for relief.

In this petition for prohibition and mandamus, this Court is asked to

annul the appointment of Sarmiento and to prohibit the respondents from
preventing the petitioner from discharging his duties as Administrator of the
POEA.

Achacoso contends that he is a member of the Career Service of the Civil

Service and so enjoys security of tenure, which is one of the characteristics of
the Career Service as distinguished from the Non-Career Service. 1 Claiming to
have the rank of undersecretary, he says he comes under Article IV, Section 5
of P.D. 807, otherwise known as the Civil Service Decree, which includes in the
Career Service:

3. Positions in the Career Executive Service; namely, Undersecretary,

Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career Executive Service
Board, all of whom are appointed by the President.

His argument is that in view of the security of tenure enjoyed by the

above-named officials, it was “beyond the prerogatives of the President” to
require them to submit courtesy resignations. Such courtesy resignations, even
if filed, should be disregarded for having been submitted “under duress,” as
otherwise the President would have the power to remove career officials at
pleasure, even for capricious reasons. In support of this contention, he
invokes Ortiz v. Commission on Elections, 2 where we observed that “to
constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish” and that “a courtesy resignation
cannot properly be interpreted as a resignation in the legal sense for it is not
necessarily a reflection of a public official’s intention to surrender his position.”
He concludes that as his removal was illegal, there was no vacancy in the
disputed office to which respondent Sarmiento could have been validly
appointed.

In his Comment, the Solicitor General concedes that the office of POEA
Administrator is a career executive service position but submits that the
petitioner himself is not a career executive service official entitled to security of
tenure.

The respondents contend that as the petitioner was not a career

executive service eligible at the time of his appointment, he came under the
exception to the above rule and so was subject to the provision that he “shall
subsequently take the required Career Executive Service examination and that
he shall not be promoted to a higher rank until he qualifies in such
examination.” Not having taken that examination, he could not claim that his
appointment was permanent and guaranteed him security of tenure in his
position.

ISSUE:

WON Achacoso is protected by the security of tenure clause

HELD:

NO. The Court finds for the respondent.

CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY OF TENURE;

PERMANENT APPOINTMENT ISSUED ONLY TO PERSONS QUALIFIED. —
A permanent appointment can be issued only “to a person who meets all
the requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed.”

The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications.
 PERSONS APPOINTED WITHOUT THE REQUISITE QUALIFICATION
DEEMED IN ACTING CAPACITY. — The mere fact that a position belongs to the
Career Service does not automatically confer security of tenure on its occupant
even if he does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it.

A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an exception to the rule,
may be appointed to it merely in an acting capacity in the absence of
appropriate eligibles.

TEMPORARY APPOINTMENT; PURPOSE. — The purpose of an acting or

temporary appointment is to prevent a hiatus in the discharge of official
functions by authorizing a person to discharge the same pending the selection.

CONDITION IMPOSED ON APPOINTEE. — The person named in an

acting capacity accepts the position under the condition that he shall
surrender the office once he is called upon to do so by the appointing
authority.

EXPIRATION OF TERM; METHOD OF TERMINATING TEMPORARY

EMPLOYMENT. — In these circumstances, the acting appointee is separated by
a method of terminating official relations known in the law of public officers as
expiration of the term. His term is understood at the outset as without any
fixity and enduring at the pleasure of the appointing authority.

When required to relinquish his office, he cannot complain that he is

being removed in violation of his security of tenure because removal imports
the separation of the incumbent before the expiration of his term. This is
allowed by the Constitution only when it is for cause as provided by law. The
acting appointee is separated precisely because his term has expired.
Expiration of the term is not covered by the constitutional provision on security
of tenure.

7. Matibag v. Benipayo

G.R. No. 149036 

(AD INTERIM APPOINTMENT)

Facts:
 Herein petitioner Matibag was appointed by the COMELEC en banc as
“Acting Director IV” of the EID and was reappointed twice for the same position
in a temporary capacity. Meanwhile, then PGMA also made appointments, ad
interim, of herein respondents Benipayo, Borra and Tuason, as COMELEC
Chairman and Commissioners, respectively. Their appointments were renewed
thrice by PGMA, the last one during the pendency of the case, all due to the
failure of the Commission of Appointments to act upon the confirmation of
their appointments.

Respondent Benipayo, acting on his capacity as COMELEC Chairman,

issued a memorandum removing petitioner as Acting Director IV and
reassigning her to the Law Department. Petitioner requested for
reconsideration but was denied.

Thus, petitioner filed the instant petition questioning the appointment

and the right to remain in office of herein respondents, claiming that their ad
interim appointments violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and members.

Issue:

(1) Whether the ad interim appointments made by PGMA were prohibited

under the Constitution

(2) Whether the ad interim appointments made by PGMA were temporary

in character

Ruling:

 
(1) While the Constitution mandates that the COMELEC “shall be
independent”, this provision should be harmonized with the President’s power
to extend ad interim appointments. To hold that the independence of the
COMELEC requires the Commission on Appointments to first confirm ad
interim appointees before the appointees can assume office will negate the
President’s power to make ad interim appointments.

This is contrary to the rule on statutory construction to give meaning

and effect to every provision of the law. It will also run counter to the clear
intent of the framers of the Constitution. The original draft of Section 16,
Article VII of the Constitution – on the nomination of officers subject to
confirmation by the Commission on Appointments – did not provide for ad
interim appointments. The original intention of the framers of the Constitution
was to do away with ad interim appointments because the plan was for
Congress to remain in session throughout the year except for a brief 30-day
compulsory recess.

However, because of the need to avoid disruptions in essential

government services, the framers of the Constitution thought it wise to
reinstate the provisions of the 1935 Constitution on ad interim appointments.
Clearly, the reinstatement in the present Constitution of the ad
interim appointing power of the President was for the purpose of avoiding
interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three constitutional
commissions.

Evidently, the exercise by the President in the instant case of her

constitutional power to make ad interim appointments prevented the
occurrence of the very evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power to make ad
interim appointments is lodged in the President to be exercised by her in her
sound judgment. Under the second paragraph of Section 16, Article VII of the
Constitution, the President can choose either of two modes in appointing
officials who are subject to confirmation by the Commission on Appointments.
First, while Congress is in session, the President may nominate the
prospective appointee, and pending consent of the Commission on
Appointments, the nominee cannot qualify and assume office. Second, during
the recess of Congress, the President may extend an ad interim appointment
which allows the appointee to immediately qualify and assume office. Whether
the President chooses to nominate the prospective appointee or extend an ad
interim appointment is a matter within the prerogative of the President
because the Constitution grants her that power. This Court cannot inquire into
the propriety of the choice made by the President in the exercise of her
constitutional power, absent grave abuse of discretion amounting to lack or
excess of jurisdiction on her part, which has not been shown in the instant
case.

In fine, we rule that the ad interim appointments extended by the

President to Benipayo, Borra and Tuason, as COMELEC Chairman and
Commissioners, respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

(2) An ad interim appointment is a permanent appointment because it

takes effect immediately and can no longer be withdrawn by the President once
the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad interim appointment
permanent in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of Congress.
 The second paragraph of Section 16, Article VII of the Constitution
provides as follows:

“The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.”

Thus, the ad interim appointment remains effective until such

disapproval or next adjournment, signifying that it can no longer be withdrawn
or revoked by the President.

While an ad interim appointment is permanent and irrevocable except as

provided by law, an appointment or designation in a temporary or acting
capacity can be withdrawn or revoked at the pleasure of the appointing power.
A temporary or acting appointee does not enjoy any security of tenure, no
matter how briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent constitutional
commissions, including the COMELEC.

In the instant case, the President did in fact appoint permanent

Commissioners to fill the vacancies in the COMELEC, subject only to
confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of Congress.
They were not appointed or designated in a temporary or acting capacity. The
ad interim appointments of Benipayo, Borra and Tuason are expressly allowed
by the Constitution which authorizes the President, during the recess of
Congress, to make appointments that take effect immediately.

8. DE CASTRO VS. JBC
G.R. No. 191002

(MIDNIGHT APPOINTMENT)

FACTS:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17,

2010 occurs just days after the coming presidential elections on May 10, 2010.
These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or
seven days after the presidential election. Under Section 4(1), in relation to
Section 9, Article VIII, that “vacancy shall be filled within ninety days from the
occurrence thereof” from a “list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy.”

Also considering that Section 15, Article VII (Executive Department) of

the Constitution prohibits the President or Acting President from making
appointments within two months immediately before the next presidential
elections and up to the end of his term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public
service or endanger public safety.

The JBC, in its en banc meeting of January 18, 2010, unanimously

agreed to start the process of filling up the position of Chief Justice.
Conformably with its existing practice, the JBC “automatically considered” for
the position of Chief Justice the five most senior of the Associate Justices of
the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice
Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate
Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B.
Nachura.

However, the last two declined their nomination through letters dated
January 18, 2010 and January 25, 2010, respectively.
The OSG contends that the incumbent President may appoint the next Chief
Justice, because the prohibition under Section 15, Article VII of the
Constitution does not apply to appointments in the Supreme Court. It argues
that any vacancy in the Supreme Court must be filled within 90 days from its
occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had
the framers intended the prohibition to apply to Supreme Court appointments,
they could have easily expressly stated so in the Constitution, which explains
why the prohibition found in Article VII (Executive Department) was not written
in Article VIII (Judicial Department); and that the framers also incorporated in
Article VIII ample restrictions or limitations on the President’s power to appoint
members of the Supreme Court to ensure its independence from “political
vicissitudes” and its “insulation from political pressures,” such as stringent
qualifications for the positions, the establishment of the JBC, the specified
period within which the President shall appoint a Supreme Court Justice.

A part of the question to be reviewed by the Court is whether the JBC

properly initiated the process, there being an insistence from some of the
oppositors-intervenors that the JBC could only do so once the vacancy has
occurred (that is, after May 17, 2010).

Another part is, of course, whether the JBC may resume its process until
the short list is prepared, in view of the provision of Section 4(1), Article VIII,
which unqualifiedly requires the President to appoint one from the short list to
fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate
Justice) within 90 days from the occurrence of the vacancy.

ISSUE:

Whether the incumbent President can appoint the successor of Chief

Justice Puno upon his retirement.

Ruling:

Prohibition under Section 15, Article VII does not apply to appointments
to fill a vacancy in the Supreme Court or to other appointments to the
Judiciary.
Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 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 other, Section 4 (1), Article VIII (Judicial Department), states: Section
4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three,
five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.
Had the framers intended to extend the prohibition contained in Section
15, Article VII to the appointment of Members of the Supreme Court, they
could have explicitly done so. They could not have ignored the meticulous
ordering of the provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being equally applicable
to the appointment of Members of the Supreme Court in Article VIII itself, most
likely in Section 4 (1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up
to the end of the President’s or Acting President’s term does not refer to the
Members of the Supreme Court.

Had the framers intended to extend the prohibition contained in Section

15, Article VII to the appointment of Members of the Supreme Court, they
could have explicitly done so. They could not have ignored the meticulous
ordering of the provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being equally applicable
to the appointment of Members of the Supreme Court in Article VIII itself, most
likely in Section 4 (1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up
to the end of the President’s or Acting President’s term does not refer to the
Members of the Supreme Court.

Section 14, Section 15, and Section 16 are obviously of the same
character, in that they affect the power of the President to appoint. The fact
that Section 14 and Section 16 refer only to appointments within the Executive
Department renders conclusive that Section 15 also applies only to the
Executive Department.

This conclusion is consistent with the rule that every part of the statute
must be interpreted with reference to the context, i.e. that every part must be
considered together with the other parts, and kept subservient to the general
intent of the whole enactment. It is absurd to assume that the framers
deliberately situated Section 15 between Section 14 and Section 16, if they
intended Section 15 to cover all kinds of presidential appointments. If that was
their intention in respect of appointments to the Judiciary, the framers, if only
to be clear, would have easily and surely inserted a similar prohibition in
Article VIII, most likely within Section 4 (1) thereof.

9. Amba vs Buenaseda
G.R. 95244

(INSTANCES OF TERMPORARY APPOINTMENT)

Facts:

Petitioners were resident trainee physicians of the DOH assigned to the

National Center for Mental Health (NCMH). They were terminated from service
because of poor academic performance and low-ranking.

Petitioners filed with the Secretary of Health a letter of complaint;

however, the Secretary confirmed the termination done by the NCMH. The
Merit System Protection Board (Board), through a resolution, also took
cognizance of the affirmation done by the Secretary. Hence, the instant
petition.

Issue:

whether the petitioners were only entitled to back salaries from the
time of their termination on July 1, 1989 to the time of the confirmation of t
heir termination by the Secretary of Health on August 17, 1989.
Ruling:

The court ruled in the affirmative because the NCMH had no power to
terminate the trainees. Only the Secretary of Health, as the appointing
authority, had the power to remove them from the service.

Thus, the removal of petitioners by NCMH effective 1 July 1989 was

not valid. But, the confirmation on 17 August 1989 made by the Secretary of
Health of petitioners' termination had the force and effect of a valid removal,
effective on the date such confirmation was made.

The supervision and control of the government training program are

under either the Secretary of Health or Secretary of National Defense.

In as much as the NCMH is under the Department of Health, it is the

Secretary of Health who has the authority to appoint as well as remove the
resident trainees.

The removal of petitioners by NCMH effective 1 July 1989 was not

valid. But, the confirmation on 17 August 1989 made by the Secretary of
Health of petitioners' termination had the force and effect of a valid removal,
effective on the date such confirmation was made.

10. Gloria vs. De Guzman

G.R. No. 116183

(INSTANCES OF TERMPORARY APPOINTMENT)

FACTS:

Private respondents were employees of the Philippine Air Force College of

Aeronautics (PAFCA) by virtue of temporary appointments. Cerillo, one of the
respondents, was appointed as Board Secretary II of PAFCA. However, she was
removed from the position by reason of loss of confidence.

Subsequently, she was designated as “Coordinator for Extension

Services”.
Said appointments expired when the PAFCA was dissolved and replaced by the
PSCA (Philippine State College of Aeronautics).
 Aggrieved, private respondents filed a Petition for Mandamus for
reinstatement before the RTC of Pasay. Respondent Judge De Guzman
rendered a decision ordering the reinstatement of Cerillo as coordinator for
extension services.

ISSUE:

Whether or not private respondent Rosario V. Cerillo is entitled to

reinstatement to the position of Coordinator for Extension Services.

RULING:

No. Private respondent’s assignment as “Coordinator for Extension

Services” was a mere designation. Not being a permanent appointment, the
designation to the position cannot be the subject of a case for
reinstatement.The judgment of respondent Judge which orders the
reinstatement of Ms. Rosario V. Cerillo to the position of “Coordinator for
Extension Services” is patently improper because it finds no support as to facts
and the law.

Respondent Cerillo, although temporarily extended an appointment as

Board Secretary II, was dismissed therefrom because of loss of confidence. This
dismissal was neither contested nor appealed from by Ms. Cerillo. There is no
question, therefore, that her dismissal as Board Secretary II could not have
been the subject of the petition for mandamus and reinstatement filed before
respondent Judge. The fact is that private respondent’s assignment as
“Coordinator for Extension Services” was a mere designation. Not being a
permanent appointment, the designation to the position cannot be the subject
of a case for reinstatement.

The exercise of the discretionary power of appointment cannot be

controlled, not even by the Court as long as it is exercised properly by the
appointing authority. Thus, the order of the lower court for the reinstatement
of the private respondent amounts to an undue interference by the court in the
exercise of a discretionary power vested in the PSCA Board of Trustees.