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Republic of the Philippines given is that which is embodied and expressed in the

SUPREME COURT constitutional provisions themselves.


Manila The Court will thus construe the applicable constitutional
EN BANC provisions, not in accordance with how the executive or the
G.R. No. 79974 December 17, 1987 legislative department may want them construed, but in
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, accordance with what they say and provide.
petitioners, Section 16, Article VII of the 1987 Constitution says:
vs. The President shall nominate and, with the consent of the
SALVADOR MISON, in his capacity as COMMISSIONER Commission on Appointments, appoint the heads of the
OF THE BUREAU OF CUSTOMS, AND GUILLERMO executive departments, ambassadors, other public ministers and
CARAGUE, in his capacity as SECRETARY OF THE consuls, or officers of the armed forces from the rank of colonel
DEPARTMENT OF BUDGET, respondents, COMMISSION or naval captain, and other officers whose appointments are
ON APPOINTMENTS, intervenor. vested in him in this Constitution. He shall also appoint all other
officers of the Government whose appointments are not
PADILLA, J.: otherwise provided for by law, and those whom he may be
Once more the Court is called upon to delineate constitutional authorized by law to appoint. The Congress may, by law, vest
boundaries. In this petition for prohibition, the petitioners, who the appointment of other officers lower in rank in the President
are taxpayers, lawyers, members of the Integrated Bar of the alone, in the courts, or in the heads of the departments,
Philippines and professors of Constitutional Law, seek to enjoin agencies, commissions or boards.
the respondent Salvador Mison from performing the functions of The President shall have the power to make appointments
the Office of Commissioner of the Bureau of Customs and the during the recess of the Congress, whether voluntary or
respondent Guillermo Carague, as Secretary of the Department compulsory, but such appointments shall be effective only until
of Budget, from effecting disbursements in payment of Mison's disapproval by the Commission on Appointments or until the
salaries and emoluments, on the ground that Mison's next adjournment of the Congress.
appointment as Commissioner of the Bureau of Customs is It is readily apparent that under the provisions of the 1987
unconstitutional by reason of its not having been confirmed by Constitution, just quoted, there are four (4) groups of officers
the Commission on Appointments. The respondents, on the whom the President shall appoint. These four (4) groups, to
other hand, maintain the constitutionality of respondent Mison's which we will hereafter refer from time to time, are:
appointment without the confirmation of the Commission on First, the heads of the executive departments, ambassadors,
Appointments. other public ministers and consuls, officers of the armed forces
Because of the demands of public interest, including the need from the rank of colonel or naval captain, and other officers
for stability in the public service, the Court resolved to give due whose appointments are vested in him in this Constitution; 2
course to the petition and decide, setting aside the finer Second, all other officers of the Government whose
procedural questions of whether prohibition is the proper appointments are not otherwise provided for by law; 3
remedy to test respondent Mison's right to the Office of Third, those whom the President may be authorized by law to
Commissioner of the Bureau of Customs and of whether the appoint;
petitioners have a standing to bring this suit. Fourth, officers lower in rank 4 whose appointments the
By the same token, and for the same purpose, the Court allowed Congress may by law vest in the President alone.
the Commission on Appointments to intervene and file a petition The first group of officers is clearly appointed with the consent
in intervention. Comment was required of respondents on said of the Commission on Appointments. Appointments of such
petition. The comment was filed, followed by intervenor's reply officers are initiated by nomination and, if the nomination is
thereto. The parties were also heard in oral argument on 8 confirmed by the Commission on Appointments, the President
December 1987. appoints. 5
This case assumes added significance because, at bottom line, The second, third and fourth groups of officers are the present
it involves a conflict between two (2) great departments of bone of contention. Should they be appointed by the President
government, the Executive and Legislative Departments. It also with or without the consent (confirmation) of the Commission
occurs early in the life of the 1987 Constitution. on Appointments? By following the accepted rule in
The task of the Court is rendered lighter by the existence of constitutional and statutory construction that an express
relatively clear provisions in the Constitution. In cases like this, enumeration of subjects excludes others not enumerated, it
we follow what the Court, speaking through Mr. Justice (later, would follow that only those appointments to positions expressly
Chief Justice) Jose Abad Santos stated in Gold Creek Mining stated in the first group require the consent (confirmation) of
Corp. vs. Rodriguez, 1 that: the Commission on Appointments. But we need not rely solely
The fundamental principle of constitutional construction is to on this basic rule of constitutional construction. We can refer to
give effect to the intent of the framers of the organic law and of historical background as well as to the records of the 1986
the people adopting it. The intention to which force is to be Constitutional Commission to determine, with more accuracy, if
not precision, the intention of the framers of the 1987
Constitution and the people adopting it, on whether the On the other hand, the 1973 Constitution, consistent with the
appointments by the President, under the second, third and authoritarian pattern in which it was molded and remolded by
fourth groups, require the consent (confirmation) of the successive amendments, placed the absolute power of
Commission on Appointments. Again, in this task, the following appointment in the President with hardly any check on the part
advice of Mr. Chief Justice J. Abad Santos in Gold Creek is of the legislature.
apropos: Given the above two (2) extremes, one, in the 1935 Constitution
In deciding this point, it should be borne in mind that a and the other, in the 1973 Constitution, it is not difficult for the
constitutional provision must be presumed to have been framed Court to state that the framers of the 1987 Constitution and the
and adopted in the light and understanding of prior and existing people adopting it, struck a "middle ground" by requiring the
laws and with reference to them. "Courts are bound to presume consent (confirmation) of the Commission on Appointments for
that the people adopting a constitution are familiar with the the first group of appointments and leaving to the President,
previous and existing laws upon the subjects to which its without such confirmation, the appointment of other officers,
provisions relate, and upon which they express their judgment i.e., those in the second and third groups as well as those in the
and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 fourth group, i.e., officers of lower rank.
N.W., 769,65 L. R. A., 762.) 6 The proceedings in the 1986 Constitutional Commission support
It will be recalled that, under Sec. 10, Article VII of the 1935 this conclusion. The original text of Section 16, Article VII, as
Constitution, it is provided that proposed by the Committee on the Executive of the 1986
xxx xxx xxx Constitutional Commission, read as follows:
(3) The President shall nominate and with the consent of Section 16. The president shall nominate and, with the consent
the Commission on Appointments, shall appoint the heads of the of a Commission on Appointment, shall appoint the heads of the
executive departments and bureaus, officers of the army from executive departments and bureaus, ambassadors, other public
the rank of colonel, of the Navy and Air Forces from the rank of ministers and consuls, or officers of the armed forces from the
captain or commander, and all other officers of the Government rank of colonel or naval captain and all other officers of the
whose appointments are not herein otherwise provided for, and Government whose appointments are not otherwise provided
those whom he may be authorized by law to appoint; but the for by law, and those whom he may be authorized by law to
Congress may by law vest the appointment of inferior officers, appoint. The Congress may by law vest the appointment of
in the President alone, in the courts, or in the heads of inferior officers in the President alone, in the courts, or in the
departments. heads of departments 7 [Emphasis supplied].
(4) The President shall havethe power to make The above text is almost a verbatim copy of its counterpart
appointments during the recess of the Congress, but such provision in the 1935 Constitution. When the frames discussed
appointments shall be effective only until disapproval by the on the floor of the Commission the proposed text of Section 16,
Commission on Appointments or until the next adjournment of Article VII, a feeling was manifestly expressed to make the
the Congress. power of the Commission on Appointments over presidential
xxx xxx xxx appointments more limited than that held by the Commission in
(7) ..., and with the consent of the Commission on the 1935 Constitution. Thus-
Appointments, shall appoint ambassadors, other public ministers Mr. Rama: ... May I ask that Commissioner Monsod be
and consuls ... recognized
Upon the other hand, the 1973 Constitution provides that- The President: We will call Commissioner Davide later.
Section 10. The President shall appoint the heads of bureaus Mr. Monsod: With the Chair's indulgence, I just want to
and offices, the officers of the Armed Forces of the Philippines take a few minutes of our time to lay the basis for some of the
from the rank of Brigadier General or Commodore, and all other amendments that I would like to propose to the Committee this
officers of The government whose appointments are not herein morning.
otherwise provided for, and those whom he may be authorized xxx xxx xxx
by law to appoint. However, the Batasang Pambansa may by On Section 16, I would like to suggest that the power of the
law vest in the Prime Minister, members of the Cabinet, the Commission on Appointments be limited to the department
Executive Committee, Courts, Heads of Agencies, Commissions, heads, ambassadors, generals and so on but not to the levels of
and Boards the power to appoint inferior officers in their bureau heads and colonels.
respective offices. xxx xxx xxx 8 (Emphasis supplied.)
Thus, in the 1935 Constitution, almost all presidential In the course of the debates on the text of Section 16, there
appointments required the consent (confirmation) of the were two (2) major changes proposed and approved by the
Commission on Appointments. It is now a sad part of our Commission. These were (1) the exclusion of the appointments
political history that the power of confirmation by the of heads of bureaus from the requirement of confirmation by
Commission on Appointments, under the 1935 Constitution, the Commission on Appointments; and (2) the exclusion of
transformed that commission, many times, into a venue of appointments made under the second sentence 9 of the section
"horse-trading" and similar malpractices. from the same requirement. The records of the deliberations of
the Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized THE PRESIDENT: Is there any objection to delete the phrase
THE PRESIDENT: Commissioner Foz is recognized 'and bureaus' on page 7, line 26? (Silence) The Chair hears
MR. FOZ: Madam President, my proposed amendment none; the amendments is approved.
is on page 7, Section 16, line 26 which is to delete the words xxx xxx xxx
"and bureaus," and on line 28 of the same page, to change the MR. ROMULO: Madam President.
phrase 'colonel or naval captain to MAJOR GENERAL OR REAR THE PRESIDENT: The Acting Floor Leader is recognized.
ADMIRAL. This last amendment which is co-authored by THE PRESIDENT: Commissioner Foz is recognized
Commissioner de Castro is to put a period (.) after the word MR. FOZ: Madam President, this is the third proposed
ADMIRAL, and on line 29 of the same page, start a new sentence amendment on page 7, line 28. 1 propose to put a period (.)
with: HE SHALL ALSO APPOINT, et cetera. after 'captain' and on line 29, delete 'and all' and substitute it
MR. REGALADO: May we have the amendments one by one. with HE SHALL ALSO APPOINT ANY.
The first proposed amendment is to delete the words "and MR. REGALADO: Madam President, the Committee accepts the
bureaus" on line 26. proposed amendment because it makes it clear that those other
MR. FOZ: That is correct. officers mentioned therein do not have to be confirmed by the
MR. REGALADO: For the benefit of the other Commissioners, Commission on Appointments.
what would be the justification of the proponent for such a MR. DAVIDE: Madam President.
deletion? THE PRESIDENT: Commissioner Davide is recognized.
MR. FOZ: The position of bureau director is actually xxx xxx xxx
quite low in the executive department, and to require further MR. DAVIDE: So would the proponent accept an
confirmation of presidential appointment of heads of bureaus amendment to his amendment, so that after "captain" we insert
would subject them to political influence. the following words: AND OTHER OFFICERS WHOSE
MR. REGALADO: The Commissioner's proposed amendment by APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
deletion also includes regional directors as distinguished from FR. BERNAS: It is a little vague.
merely staff directors, because the regional directors have quite MR. DAVIDE: In other words, there are positions provided
a plenitude of powers within the regions as distinguished from for in the Constitution whose appointments are vested in the
staff directors who only stay in the office. President, as a matter of fact like those of the different
MR. FOZ: Yes, but the regional directors are under the constitutional commissions.
supervisiopn of the staff bureau directors. FR. BERNAS: That is correct. This list of officials found in
xxx xxx xxx Section 16 is not an exclusive list of those appointments which
MR. MAAMBONG: May I direct a question to Commissioner Foz? constitutionally require confirmation of the Commission on
The Commissioner proposed an amendment to delete 'and Appointments,
bureaus on Section 16. Who will then appoint the bureau MR. DAVIDE: That is the reason I seek the incorporation of
directors if it is not the President? the words I proposed.
MR. FOZ: It is still the President who will appoint them FR. BERNAS: Will Commissioner Davide restate his
but their appointment shall no longer be subject to confirmation proposed amendment?
by the Commission on Appointments. MR. DAVIDE: After 'captain,' add the following: AND OTHER
MR. MAAMBONG: In other words, it is in line with the same OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
answer of Commissioner de Castro? THIS CONSTITUTION.
MR. FOZ: Yes. FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE
MR. MAAMBONG: Thank you. APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
THE PRESIDENT: Is this clear now? What is the reaction of the CONSTITUTION"?
Committee? MR. DAVIDE: Yes, Madam President, that is modified by the
xxx xxx xxx Committee.
MR. REGALADO: Madam President, the Committee feels that FR. BERNAS: That will clarify things.
this matter should be submitted to the body for a vote. THE PRESIDENT: Does the Committee accept?
MR. DE CASTRO: Thank you. MR. REGALADO: Just for the record, of course, that excludes
MR. REGALADO: We will take the amendments one by one. We those officers which the Constitution does not require
will first vote on the deletion of the phrase 'and bureaus on line confirmation by the Commission on Appointments, like the
26, such that appointments of bureau directors no longer need members of the judiciary and the Ombudsman.
confirmation by the Commission on Appointment. MR. DAVIDE: That is correct. That is very clear from the
Section 16, therefore, would read: 'The President shall modification made by Commissioner Bernas.
nominate, and with the consent of a Commission on THE PRESIDENT: So we have now this proposed amendment of
Appointments, shall appoint the heads of the executive Commissioners Foz and Davide.
departments, ambassadors. . . . xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by
the Committee? (Silence) The Chair hears none; the of the 1987 Constitution that, except as to those officers whose
amendment, as amended, is approved 10 (Emphasis supplied). appointments require the consent of the Commission on
It is, therefore, clear that appointments to the second and third Appointments by express mandate of the first sentence in Sec.
groups of officers can be made by the President without the 16, Art. VII, appointments of other officers are left to the
consent (confirmation) of the Commission on Appointments. President without need of confirmation by the Commission on
It is contended by amicus curiae, Senator Neptali Gonzales, that Appointments. This conclusion is inevitable, if we are to
the second sentence of Sec. 16, Article VII reading- presume, as we must, that the framers of the 1987 Constitution
He (the President) shall also appoint all other officers of the were knowledgeable of what they were doing and of the
Government whose appointments are not otherwise provided foreseable effects thereof.
for by law and those whom he may be authorized by law to Besides, the power to appoint is fundamentally executive or
appoint . . . . (Emphasis supplied) presidential in character. Limitations on or qualifications of such
with particular reference to the word "also," implies that the power should be strictly construed against them. Such
President shall "in like manner" appoint the officers mentioned limitations or qualifications must be clearly stated in order to be
in said second sentence. In other words, the President shall recognized. But, it is only in the first sentence of Sec. 16, Art.
appoint the officers mentioned in said second sentence in the VII where it is clearly stated that appointments by the President
same manner as he appoints officers mentioned in the first to the positions therein enumerated require the consent of the
sentence, that is, by nomination and with the consent Commission on Appointments.
(confirmation) of the Commission on Appointments. As to the fourth group of officers whom the President can
Amicus curiae's reliance on the word "also" in said second appoint, the intervenor Commission on Appointments
sentence is not necessarily supportive of the conclusion he underscores the third sentence in Sec. 16, Article VII of the 1987
arrives at. For, as the Solicitor General argues, the word "also" Constitution, which reads:
could mean "in addition; as well; besides, too" (Webster's The Congress may, by law, vest the appointment of other
International Dictionary, p. 62, 1981 edition) which meanings officers lower in rank in the President alone, in the courts, or in
could, on the contrary, stress that the word "also" in said second the heads of departments, agencies, commissions, or boards.
sentence means that the President, in addition to nominating [Emphasis supplied].
and, with the consent of the Commission on Appointments, and argues that, since a law is needed to vest the appointment
appointing the officers enumerated in the first sentence, can of lower-ranked officers in the President alone, this implies that,
appoint (without such consent (confirmation) the officers in the absence of such a law, lower-ranked officers have to be
mentioned in the second sentence- appointed by the President subject to confirmation by the
Rather than limit the area of consideration to the possible Commission on Appointments; and, if this is so, as to lower-
meanings of the word "also" as used in the context of said ranked officers, it follows that higher-ranked officers should be
second sentence, the Court has chosen to derive significance appointed by the President, subject also to confirmation by the
from the fact that the first sentence speaks of nomination by the Commission on Appointments.
President and appointment by the President with the consent of The respondents, on the other hand, submit that the third
the Commission on Appointments, whereas, the second sentence of Sec. 16, Article VII, abovequoted, merely declares
sentence speaks only of appointment by the President. And, this that, as to lower-ranked officers, the Congress may by law vest
use of different language in two (2) sentences proximate to each their appointment in the President, in the courts, or in the heads
other underscores a difference in message conveyed and of the various departments, agencies, commissions, or boards
perceptions established, in line with Judge Learned Hand's in the government. No reason however is submitted for the use
observation that "words are not pebbles in alien juxtaposition" of the word "alone" in said third sentence.
but, more so, because the recorded proceedings of the 1986 The Court is not impressed by both arguments. It is of the
Constitutional Commission clearly and expressly justify such considered opinion, after a careful study of the deliberations of
differences. the 1986 Constitutional Commission, that the use of the word
As a result of the innovations introduced in Sec. 16, Article VII alone" after the word "President" in said third sentence of Sec.
of the 1987 Constitution, there are officers whose appointments 16, Article VII is, more than anything else, a slip or lapsus in
require no confirmation of the Commission on Appointments, draftmanship. It will be recalled that, in the 1935 Constitution,
even if such officers may be higher in rank, compared to some the following provision appears at the end of par. 3, section 1
officers whose appointments have to be confirmed by the 0, Article VII thereof
Commission on Appointments under the first sentence of the ...; but the Congress may by law vest the appointment of inferior
same Sec. 16, Art. VII. Thus, to illustrate, the appointment of officers, in the President alone, in the courts, or in the heads of
the Central Bank Governor requires no confirmation by the departments. [Emphasis supplied].
Commission on Appointments, even if he is higher in rank than The above provision in the 1935 Constitution appears
a colonel in the Armed Forces of the Philippines or a consul in immediately after the provision which makes practically all
the Consular Service. presidential appointments subject to confirmation by the
But these contrasts, while initially impressive, merely underscore Commission on Appointments, thus-
the purposive intention and deliberate judgment of the framers
3. The President shall nominate and with the consent of known as the Tariff and Customs Code of the Philippines, which
the Commission on Appointments, shall appoint the heads of the was enacted by the Congress of the Philippines on 22 June 1957,
executive departments and bureaus, officers of the Army from reads as follows:
the rank of colonel, of the Navy and Air Forces from the rank of 601. Chief Officials of the Bureau.-The Bureau of Customs
captain or commander, and all other officers of the Government shall have one chief and one assistant chief, to be known
whose appointments are not herein provided for, and those respectively as the Commissioner (hereinafter known as the
whom he may be authorized by law to appoint; ... 'Commissioner') and Assistant Commissioner of Customs, who
In other words, since the 1935 Constitution subjects, as a shall each receive an annual compensation in accordance with
general rule, presidential appointments to confirmation by the the rates prescribed by existing laws. The Assistant
Commission on Appointments, the same 1935 Constitution saw Commissioner of Customs shall be appointed by the proper
fit, by way of an exception to such rule, to provide that Congress department head.
may, however, by law vest the appointment of inferior officers Sec. 601 of Republic Act No. 1937, was amended on 27 October
(equivalent to 11 officers lower in rank" referred to in the 1987 1972 by Presidential Decree No. 34, amending the Tariff and
Constitution) in the President alone, in the courts, or in the Customs Code of the Philippines. Sec. 601, as thus amended,
heads of departments, now reads as follows:
In the 1987 Constitution, however, as already pointed out, the Sec. 601. Chief Officials of the Bureau of Customs.-The
clear and expressed intent of its framers was to exclude Bureau of Customs shall have one chief and one assistant chief,
presidential appointments from confirmation by the Commission to be known respectively as the Commissioner (hereinafter
on Appointments, except appointments to offices expressly known as Commissioner) and Deputy Commissioner of Customs,
mentioned in the first sentence of Sec. 16, Article VII. who shall each receive an annual compensation in accordance
Consequently, there was no reason to use in the third sentence with the rates prescribed by existing law. The Commissioner and
of Sec. 16, Article VII the word "alone" after the word the Deputy Commissioner of Customs shall be appointed by the
"President" in providing that Congress may by law vest the President of the Philippines (Emphasis supplied.)
appointment of lower-ranked officers in the President alone, or Of course, these laws (Rep. Act No. 1937 and PD No. 34) were
in the courts, or in the heads of departments, because the power approved during the effectivity of the 1935 Constitution, under
to appoint officers whom he (the President) may be authorized which the President may nominate and, with the consent of the
by law to appoint is already vested in the President, without Commission on Appointments, appoint the heads of bureaus,
need of confirmation by the Commission on Appointments, in like the Commissioner of the Bureau of Customs.
the second sentence of the same Sec. 16, Article VII. After the effectivity of the 1987 Constitution, however, Rep. Act
Therefore, the third sentence of Sec. 16, Article VII could have No. 1937 and PD No. 34 have to be read in harmony with Sec.
stated merely that, in the case of lower-ranked officers, the 16, Art. VII, with the result that, while the appointment of the
Congress may by law vest their appointment in the President, in Commissioner of the Bureau of Customs is one that devolves on
the courts, or in the heads of various departments of the the President, as an appointment he is authorizedby law to
government. In short, the word "alone" in the third sentence of make, such appointment, however, no longer needs the
Sec. 16, Article VII of the 1987 Constitution, as a literal import confirmation of the Commission on Appointments.
from the last part of par. 3, section 10, Article VII of the 1935 Consequently, we rule that the President of the Philippines acted
Constitution, appears to be redundant in the light of the second within her constitutional authority and power in appointing
sentence of Sec. 16, Article VII. And, this redundancy cannot respondent Salvador Mison, Commissioner of the Bureau of
prevail over the clear and positive intent of the framers of the Customs, without submitting his nomination to the Commission
1987 Constitution that presidential appointments, except those on Appointments for confirmation. He is thus entitled to exercise
mentioned in the first sentence of Sec. 16, Article VII, are not the full authority and functions of the office and to receive all
subject to confirmation by the Commission on Appointments. the salaries and emoluments pertaining thereto.
Coming now to the immediate question before the Court, it is WHEREFORE, the petition and petition in intervention should be,
evident that the position of Commissioner of the Bureau of as they are, hereby DISMISSED. Without costs.
Customs (a bureau head) is not one of those within the first SO ORDERED.
group of appointments where the consent of the Commission on Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and
Appointments is required. As a matter of fact, as already pointed Cortes, JJ., concur.
out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of
the Commission on Appointments, the 1987 Constitution on the Separate Opinions
other hand, deliberately excluded the position of "heads of
bureaus" from appointments that need the consent TEEHANKEE, C.J., concurring:
(confirmation) of the Commission on Appointments. The Court has deemed it necessary and proper, in consonance
Moreover, the President is expressly authorized by law to with its constitutional duty, to adjudicate promptly the issue at
appoint the Commissioner of the Bureau of Customs. The bar and to rule that the direct appointment of respondent
original text of Sec. 601 of Republic Act No. 1937, otherwise Salvador Mison as Commissioner of the Bureau of Customs
(without need of submitting a prior nomination to the officials enumerated. The second sentence, however,
Commission on Appointments and securing its confirmation) is significantly uses only the term "appoint" all other officers of the
valid and in accordance with the President's constitutional Government whose appointments are not otherwise provided
authority to so appoint officers of the Government as defined in for by law, and those whom he may be authorized by law to
Article VII, section 16 of the 1987 Constitution. The paramount appoint. Deliberately eliminated was any reference to
public interest and the exigencies of the public service demand nomination.
that any doubts over the validity of such appointments be Thus, the intent of the framers of the Constitution to exclude
resolved expeditiously in the test case at bar. the appointees mentioned in the second sentence from
It should be noted that the Court's decision at bar does not confirmation by the Commission on Appointments is, to my
mention nor deal with the Manifestation of December 1, 1987 mind, quite clear. So also is the fact that the term "appoint" used
filed by the intervenor that Senate Bill No. 137 entitled "An Act in said sentence was not meant to include the three distinct acts
Providing For the Confirmation By the Commission on in the appointing process, namely, nomination, appointment,
Appointments of All Nominations and Appointments Made by the and commission. For if that were the intent, the same
President of the Philippines" was passed on 23 October 1987 terminologies in the first sentence could have been easily
and was "set for perusal by the House of Representatives. " This employed.
omission has been deliberate. The Court has resolved the case There should be no question either that the participation of the
at bar on the basis of the issues joined by the parties. The Commission on Appointments in the appointment process has
contingency of approval of the bill mentioned by intervenor been deliberately decreased in the 1987 Constitution compared
clearly has no bearing on and cannot affect retroactively the to that in the 1935 Constitution, which required that all
validity of the direct appointment of respondent Mison and other presidential appointments be with the consent of the
appointees similarly situated as in G.R. No. 80071, "Alex G. Commission on Appointments.
Almario vs. Hon. Miriam Defensor- Santiago." The Court does The interpretation given by the majority may, indeed, lead to
not deal with constitutional questions in the abstract and without some incongruous situations as stressed in the dissenting
the same being properly raised before it in a justiciable case and opinion of Justice Cruz. The remedy therefor addresses itself to
after thorough discussion of the various points of view that the future. The task of constitutional construction is to ascertain
would enable it to render judgment after mature deliberation. the intent of the framers of the Constitution and thereafter to
As stressed at the hearing of December 8, 1987, any discussion assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure
of the reported bill and its validity or invalidity is premature and Administration, G.R. No. 21064, February 18, 1970, 31 SCRA
irrelevant and outside the scope of the issues resolved in the 413). And the primary source from which to ascertain
case at bar. constitutional intent is the language of the Constitution itself.
MELENCIO-HERRERA, J., concurring: SARMIENTO, J., concurring:
I concur with the majority opinion and with the concurring I concur. It is clear from the Constitution itself that not all
opinion of Justice Sarmiento, and simply wish to add my own Presidential appointments are subject to prior Congressional
reading of the Constitutional provision involved. confirmation, thus:
Section 16, Article VII, of the 1987 Constitution provides: Sec. 16. The President shall nominate and, with the consent of
The President shall nominate and, with the consent of the the Commission on Appointments, appoint the heads of the
Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and
executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are
or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other
vested in him in this Constitution. officers of the Government whose appointments are not
He shall also appoint all other officers of the Government whose otherwise provided for by law, and those whom he may be
appointments are not otherwise provided for by law, and those authorized by law to appoint. The Congress may, by law, vest
whom he may be authorized by law to appoint. the appointment of other officers lower in rank in the President
The Congress may, by law, vest the appointment of other alone, in the courts, or in the heads of departments, agencies,
officers lower in rank in the President alone, in the courts, or in commissions, or boards.
the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments
The President shall have the power to make appointments during recess of the Congress, whether voluntary or
during the recess of the Congress, whether voluntary or compulsory, but such appointment shall be effective only until
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the
disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1
next adjournment of the Congress (Emphasis and 1st three By its plain language, the Constitution has intended that only
paragraphings, supplied). those grouped under the first sentence are required to undergo
The difference in language used is significant. Under the first a consenting process. This is a significant departure from the
sentence it is clear that the President "nominates" and with the procedure set forth in the 1935 Charter:
consent of the Commission on Appointments "appoints" the
(3) The President shall nominate and with the consent of discretion." 12 Springer v. Philippine Islands 13 on the other
the Commission on Appointments, shall appoint the heads of the hand, underscored the fact that while the legislature may create
executive departments and bureaus, officers of the Army from a public office, it cannot name the official to discharge the
the rank of colonel, of the Navy and Air Forces from the rank of functions appurtenant thereto. And while it may prescribe the
captain to commander, and all other officers of the Government qualifications therefor, it cannot circumscribe such
whose appointments are not herein otherwise provided for, and qualifications, which would unduly narrow the President's
those whom he may be authorized by law to appoint; but the choice. In that event, it is as if it is the legislature itself
Congress may by law vest the appointment of inferior officers, conferring the appointment.
in the President alone, in the courts, or in the heads of Thus, notwithstanding the existence of a Commission on
departments. 2 Appointments, the Chief Executive retains his supremacy as the
under which, as noted by the majority, "almost all presidential appointing authority. In case of doubt, the same should be
appointments required the consent (confirmation) of the resolved in favor of the appointing power.
Commission on Appointments. 3 As far as the present Charter is It is the essence of a republican form of government, like ours,
concerned, no extrinsic aid is necessary to ascertain its meaning. that "[e]ach department of the government has exclusive
Had its framers intended otherwise, that is to say, to require all cognizance of matters within its jurisdiction." 14 But like all
Presidential appointments clearance from the Commission on genuine republican systems, no power is absolutely separate
Appointments, they could have simply reenacted the from the other. For republicanism operates on a process of
Constitution's 1935 counterpart. 4 checks and balances as well, not only to guard against excesses
I agree that the present Constitution classifies four types of by one branch, but more importantly, "to secure coordination in
appointments that the President may make: (1) appointments the workings of the various departments of the government."
of heads of executive departments, ambassadors, other public 15 Viewed in that light, the Commission on Appointments acts
ministers and consuls, or officers of the armed forces from the as a restraint against abuse of the appointing authority, but not
rank of colonel or naval captain, and those of other officers as a means with which to hold the Chief Executive hostage by a
whose appointments are vested in him under the Constitution, possibly hostile Congress, an unhappy lesson as the majority
including the regular members of the Judicial and Bar Council, 5 notes, in our history under the regime of the 1935 Constitution.
the Chairman and Commissioners of the Civil Service The system of checks and balances is not peculiar to the
Commission, 6 the Chairman and Commissioners of the provision on appointments. The prohibition, for instance, against
Commission on Elections, 7 and the Chairman and the enactment of a bill of attainder operates as a bar against
Commissioners of the Commission on Audit; 8 (2) those officers legislative encroachment upon both judicial and executive
whose appointments are not otherwise provided for by law; (3) domains, since the determination of guilt and punishment of the
those whom he may be authorized by law to appoint; and (4) guilty address judicial and executive functions, respective y. 16
officers lower in rank whose appointments the Congress may And then, the cycle of checks and balances pervading the
vest in the President alone. Constitution is a sword that cuts both ways. In a very real sense,
But like Justice Cruz in his dissent, I too am aware that authors the power of appointment constitutes a check against legislative
of the fundamental law have written a "rather confused authority. In Springer v. Philippine Islands, 17we are told that
Constitution" 9 with respect, to a large extent, to its other parts, "Congress may not control the law enforcement process by
and with respect, to a certain extent, to the appointing clause retaining a power to appoint the individual who will execute the
itself, in the sense that it leaves us for instance, with the laws." 18 This is so, according to one authority, because "the
incongruous situation where a consul's appointment needs appointments clause, rather than 'merely dealing with etiquette
confirmation whereas that of Undersecretary of Foreign or protocol,' seeks to preserve an executive check upon
Affairs, his superior, does not. But the Idiosyncracies, as it were, legislative authority in the interest of avoiding an undue
of the Charter is not for us to judge. That is a question concentration of power in Congress. " 19
addressed to the electorate, and who, despite those The President has sworn to "execute [the] laws. 20 For that
"eccentricities," have stamped their approval on that Charter. matter, no other department of the Government may discharge
"The Court," avers the majority, "will thus construe the that function, least of all Congress. Accordingly, a statute
applicable constitutional provisions, not in accordance with how conferring upon a commission the responsibility of administering
the executive or the legislative department may want them that very legislation and whose members have been determined
construed, but in accordance with what they say and provide." therein, has been held to be repugnant to the Charter. 21
10 Execution of the laws, it was held, is the concern of the
It must be noted that the appointment of public officials is President, and in going about this business, he acts by himself
essentially an exercise of executive power. 11 The fact that the or through his men and women, and no other.
Constitution has provided for a Commission on Appointments The President, on the other hand, cannot remove his own
does not minimize the extent of such a power, much less, make appointees "except for cause provided by law."
it a shared executive-legislative prerogative. In Concepcion v. 22Parenthetically, this represents a deviation from the rule

Paredes, we stated in no uncertain terms that "[a]ppointment prevailing in American jurisdiction that "the power of removal .
to office is intrinsically an executive act involving the exercise of . . [is] incident to the power of appointment, 23 although this
has since been tempered in a subsequent case, 24 where it was other as checks," and resist tyranny, the Model of Separated and
held that the President may remove only "purely executive Divided Powers offers continuing testimony to the undying
officers, 25 that is, officers holding office at his pleasure. In dilemmas of progress and justice. 29
Ingles v. Mutuc, 26 this Court held that the President may xxx xxx xxx
remove incumbents of offices confidential in nature, but we As a closing observation, I wish to clear the impression that the
likewise made clear that in such a case, the incumbent is not 1973 Constitution deliberately denied the legislature (the
"removed" within the meaning of civil service laws, but that his National Assembly under the 1971 draft Constitution) the power
term merely expires. to check executive appointments, and hence, granted the
It is to be observed, indeed, that the Commission on President absolute appointing power. 30 As a delegate to, and
Appointments, as constituted under the 1987 Constitution, is Vice-President of, the ill-fated 1971 Constitutional Convention,
itself subject to some check. Under the Charter, "[tlhe and more so as the presiding officer of most of its plenary
Commission shall act on all appointments submitted to it within session, I am aware that the Convention did not provide for a
thirty session days of the Congress from their submission. 27 commission on appointments on the theory that the Prime
Accordingly, the failure of the Commission to either consent or Minister, the head of the Government and the sole appointing
not consent to the appointments preferred before it within the power, was himself a member of parliament. For this reason,
prescribed period results in a de facto confirmation thereof there was no necessity for a separate body to scrutinize his
Certainly, our founding fathers have fashioned a Constitution appointees. But should such appointees forfeit the confidence of
where the boundaries of power are blurred by the predominance the assembly, they are, by tradition, required to resign, unless
of checks and counterchecks, yet amid such a rubble of they should otherwise have been removed by the Prime
competing powers emerges a structure whose parts are at times Minister. 31 In effect, it is parliament itself that "approves" such
jealous of each other, but which are ultimately necessary in appointments. Unfortunately, supervening events forestalled
assuring a dynamic, but stable, society. As Mr. Justice Holmes our parliamentary experiment, and beginning with the 1976
had so elegantly articulated: amendments and some 140 or so amendments thereafter, we
xxx xxx xxx had reverted to the presidential form, 32 without provisions for
The great ordinances of the Constitution do not establish and a commission on appointments.
divide fields of black and white. Even the more specific of them In fine, while Presidential appointments, under the first sentence
are found to terminate in a penumbra shading gradually from of Section 16, of Article VII of the present Constitution, must
one extreme to the other. ... When we come to the fundamental pass prior Congressional scrutiny, it is a test that operates as a
distinctions it is still more obvious that they must be received mere safeguard against abuse with respect to those
with a certain latitude or our government could not go on. appointments. It does not accord Congress any more than the
xxx xxx xxx power to check, but not to deny, the Chief Executive's
It does not seem to need argument to show that however we appointing power or to supplant his appointees with its own. It
may disguise it by veiling words we do not and cannot carry out is but an exception to the rule. In limiting the Commission's
the distinction between legislative and executive action with scope of authority, compared to that under the 1935
mathematical precision and divide the branches into watertight Constitution, I believe that the 1987 Constitution has simply
compartments, were it ever so desirable to do so, which I am recognized the reality of that exception.
far from believing that it is, or that the Constitution requires. 28 GUTIERREZ, JR., J., dissenting:
xxx xxx xxx I join Justice Isagani A. Cruz in his dissent. I agree that the
We are furthermore told: Constitution, as the supreme law of the land, should never have
xxx xxx xxx any of its provisions interpreted in a manner that results in
... (I)t will be vital not to forget that all of these "checks and absurd or irrational consequences.
counterpoises, which Newton might readily have recognized as The Commission on Appointments is an important constitutional
suggestive of the mechanism of the heavens," (W. Wilson, body which helps give fuller expression to the principles inherent
Constitutional Government in the United States 56 (1908)] can in our presidential system of government. Its functions cannot
represent only the scaffolding of a far more subtle "vehicle of be made innocuous or unreasonably diminished to the
life (Id. at 192: "The Constitution cannot be regarded as a mere confirmation of a limited number of appointees. In the same
legal document, to be read as a will or a contract would be. It manner that the President shares in the enactment of laws
must, of the necessity of the case, be a vehicle of life.") The which govern the nation, the legislature, through its Commission
great difficulty of any theory less rich, Woodrow Wilson once on Appointments, gives assurance that only those who can pass
warned, "is that government is not a machine, but a living thing. the scrutiny of both the President and Congress will help run the
It falls, not under the theory of the universe, but under the country as officers holding high appointive positions. The third
theory of organic life. It is accountable to Darwin, not to sentence of the first paragraph " ... The Congress may, by
Newton. It is . . . shaped to its functions by the sheer pressure law, vest the appointment of other officers lower in rank in the
of life. No living thing can have its organs offset against each President alone, in the courts, or in the heads of departments,
other as checks, and five." (Id. at 56.) Yet because no complex agencies, commissions, or boards." specifies only "officers
society can have its centers of power not "offset against each lower in rank" as those who may, by law, be appointed by the
President alone. If as expounded in the majority opinion, only of the multi-sectoral members of the regional consultative
the limited number of officers in the first sentence of Section 16 commission, whose appointment is vested by the Constitution in
require confirmation, the clear intent of the third sentence is the President under Article X, Section 18, their confirmation is
lost. In fact both the second and third sentences become required although their rank is decidedly lower.
meaningless or superfluous. Superfluity is not to be read into I do not think these discrepancies were intended by the framers
such an important part of the Constitution. as they would lead to the absurd consequences we should avoid
I agree with the intervenor that all provisions of the Constitution in interpreting the Constitution.
on appointments must be read together. In providing for the There is no question that bureau directors are not required to
appointment of members of the Supreme Court and judges of be confirmed under the first sentence of Section 16, but that is
lower courts (Section 9, Article VIII), the Ombudsman and his not the provision we ought to interpret. It is the second sentence
deputies (Section 9, Article XI), the Vice President as a member we must understand for a proper resolution of the issues now
of cabinet (Section 3, Article VII) and, of course, those who by before us. Significantly, although there was a long discussion of
law the President alone may appoint, the Constitution clearly the first sentence in the Constitutional Commission, there is
provides no need for confirmation. This can only mean that all none cited on the second sentence either in the Solicitor-
other appointments need confirmation. Where there is no need General's comment or in the majority opinion. We can therefore
for confirmation or where there is an alternative process to only speculate on the correct interpretation of this provision in
confirmation, the Constitution expressly so declares. Without the light of the first and third sentences of Section 16 or by
such a declaration, there must be confirmation. reading this section in its totality.
The 1973 Constitution dispensed with confirmation by a The majority opinion says that the second sentence is the
Commission on Appointments because the government it set up exception to the first sentence and holds that the two sets of
was supposed to be a parliamentary one. The Prime Minister, as officers specified therein may be appointed by the President
head of government, was constantly accountable to the without the concurrence of the Commission on Appointments.
legislature. In our presidential system, the interpretation which This interpretation is pregnant with mischievous if not also
Justice Cruz and myself espouse, is more democratic and more ridiculous results that presumably were not envisioned by the
in keeping with the system of government organized under the framers.
Constitution. One may wonder why it was felt necessary to include the second
I, therefore vote to grant the petition. sentence at all, considering the majority opinion that the
CRUZ, J., dissenting: enumeration in the first sentence of the officers subject to
The view of the respondent, as adopted by the majority opinion, confirmation is exclusive on the basis of expressio unius est
is briefly as follows: Confirmation is required only for the officers exclusio alterius. If that be so, the first sentence would have
mentioned in the first sentence of Section 16, to wit: (1) the been sufficient by itself to convey the Idea that all other
heads of the executive departments; (2) ambassadors, other appointees of the President would not need confirmation.
public ministers and consuls; (3) officers of the armed forces One may also ask why, if the officers mentioned in the second
from the rank of colonel or naval captain; and (4) other officers sentence do not need confirmation, it was still felt necessary to
whose appointments are vested in the President in the provide in the third sentence that the appointment of the other
Constitution. No confirmation is required under the second officers lower in rank will also not need confirmation as long as
sentence for (1) all other officers whose appointments are not their appointment is vested by law in the President alone. The
otherwise provided for by law, and (2) those whom the third sentence would appear to be superfluous, too, again in
President may be authorized by law to appoint. Neither is view of the first sentence.
confirmation required by the third sentence for those other More to the point, what will follow if Congress does not see fit
officers lower in rank whose appointment is vested by law in the to vest in the President alone the appointment of those other
President alone. officers lower in rank mentioned in the third sentence?
Following this interpretation, the Undersecretary of Foreign Conformably to the language thereof, these lower officers will
Affairs, who is not the head of his department, does not have to need the confirmation of the Commission on Appointments
be confirmed by the Commission on Appointments, but the while, by contrast, the higher officers mentioned in the second
ordinary consul, who is under his jurisdiction, must be sentence will not.
confirmed. The colonel is by any standard lower in rank than the Thus, a regional director in the Department of Labor and the
Chairman of the Commission on Human Rights, which was labor arbiters, as officers lower in rank than the bureau director,
created by the Constitution; yet the former is subject to will have to be confirmed if the Congress does not vest their
confirmation but the latter is not because he does not come appointment in the President alone under the third sentence. On
under the first sentence. The Special Prosecutor, whose the other hand, their superior, the bureau director himself, will
appointment is not vested by the Constitution in the President, not need to be confirmed because, according to the majority
is not subject to confirmation under the first sentence, and opinion, he falls not under the first sentence but the second.
neither are the Governor of the Central Bank and the members This is carefulness in reverse, like checking the bridesmaids but
of the Monetary Board because they fall under the second forgetting the bride.
sentence as interpreted by the majority opinion. Yet in the case
It must be borne in mind that one of the purposes of the It is not disputed that the power of appointment is executive in
Constitutional Commission was to restrict the powers of the nature, but there is no question either that it is not absolute or
Presidency and so prevent the recurrence of another unlimited. The rule re- established by the new Constitution is
dictatorship. Among the many measures taken was the that the power requires confirmation by the Commission on
restoration of the Commission on Appointments to check the Appointments as a restraint on presidential excesses, in line with
appointing power which had been much abused by President the system of checks and balances. I submit it is the exception
Marcos. We are now told that even as this body was revived to to this rule, and not the rule, that should be strictly construed.
limit appointments, the scope of its original authority has itself In my view, the only officers appointed by the President who
been limited in the new Constitution. I have to disagree. are not subject to confirmation by the Commission on
My own reading is that the second sentence is but a continuation Appointments are (1) the members of the judiciary and the
of the Idea expressed in the first sentence and simply mentions Ombudsman and his deputies, who are nominated by the
the other officers appointed by the President who are also Judicial and Bar Council; (2) the Vice-President when he is
subject to confirmation. The second sentence is the later appointed to the Cabinet; and (3) "other officers lower in rank,"
expression of the will of the framers and so must be interpreted but only when their appointment is vested by law in the
as complementing the rule embodied in the first sentence or, if President alone. It is clear that this enumeration does not
necessary, reversing the original intention to exempt bureau include the respondent Commissioner of Customs who, while
directors from confirmation. I repeat that there were no debates not covered by the first sentence of Section 16, comes under
on this matter as far as I know, which simply means that my the second sentence thereof as I would interpret it and so is also
humble conjecture on the meaning of Section 16 is as arguable, subject to confirmation.
at least, as the suppositions of the majority. We read and rely I vote to grant the petition.
on the same records. At any rate, this view is more consistent
with the general purpose of Article VII, which, to repeat, was to
reduce the powers of the Presidency. Separate Opinions
The respondent cites the following exchange reported in page TEEHANKEE, C.J., concurring:
520, Volume II, of the Record of the Constitutional Convention: The Court has deemed it necessary and proper, in consonance
Mr. Foz: Madam President, this is the third proposed with its constitutional duty, to adjudicate promptly the issue at
amendment on page 7, line 28, 1 propose to put a period (.) bar and to rule that the direct appointment of respondent
after 'captain' and on line 29, delete 'and all' and substitute it Salvador Mison as Commissioner of the Bureau of Customs
with HE SHALL ALSO APPOINT ANY. (without need of submitting a prior nomination to the
Mr. Regalado: Madam President, the Committee accepts the Commission on Appointments and securing its confirmation) is
proposed amendment because it makes it clear that those other valid and in accordance with the President's constitutional
officers mentioned therein do not have to be confirmed by the authority to so appoint officers of the Government as defined
Commission on Appointments. in Article VII, section 16 of the 1987 Constitution. The
However, the records do not show what particular part of paramount public interest and the exigencies of the public
Section 16 the committee chairman was referring to, and a service demand that any doubts over the validity of such
reading in its entirety of this particular debate will suggest that appointments be resolved expeditiously in the test case at bar.
the body was considering the first sentence of the said section, It should be noted that the Court's decision at bar does not
which I reiterate is not the controversial provision. In any case, mention nor deal with the Manifestation of December 1, 1987
although the excerpt shows that the proposed amendment of filed by the intervenor that Senate Bill No. 137 entitled "An Act
Commissioner Foz was accepted by the committee, it is not Providing For the Confirmation By the Commission on
reflected, curiously enough, in the final version of Section 16 as Appointments of All Nominations and Appointments Made by
a perusal thereof will readily reveal. Whether it was deleted later the President of the Philippines" was passed on 23 October
in the session or reworded by the style committee or otherwise 1987 and was "set for perusal by the House of
replaced for whatever reason will need another surmise on this Representatives. " This omission has been deliberate. The
rather confused Constitution. Court has resolved the case at bar on the basis of the issues
I need only add that the records of the Constitutional joined by the parties. The contingency of approval of the bill
Commission are merely extrinsic aids and are at best persuasive mentioned by intervenor clearly has no bearing on and cannot
only and not necessarily conclusive. Interestingly, some quarters affect retroactively the validity of the direct appointment of
have observed that the Congress is not prevented from adding respondent Mison and other appointees similarly situated as in
to the list of officers subject to confirmation by the Commission G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor-
on Appointments and cite the debates on this matter in support Santiago." The Court does not deal with constitutional
of this supposition. It is true enough that there was such a questions in the abstract and without the same being properly
consensus, but it is equally true that this thinking is not at all raised before it in a justiciable case and after thorough
expressed, or even only implied, in the language of Section 16 discussion of the various points of view that would enable it to
of Article VII. Which should prevail then the provision as worded render judgment after mature deliberation. As stressed at the
or the debates? hearing of December 8, 1987, any discussion of the reported
bill and its validity or invalidity is premature and irrelevant and Land Tenure Administration, G.R. No. 21064, February 18,
outside the scope of the issues resolved in the case at bar. 1970, 31 SCRA 413). And the primary source from which to
MELENCIO-HERRERA, J., concurring: ascertain constitutional intent is the language of the
I concur with the majority opinion and with the concurring Constitution itself.
opinion of Justice Sarmiento, and simply wish to add my own SARMIENTO, J., concurring:
reading of the Constitutional provision involved. I concur. It is clear from the Constitution itself that not all
Section 16, Article VII, of the 1987 Constitution provides: Presidential appointments are subject to prior Congressional
The President shall nominate and, with the consent of the confirmation, thus:
Commission on Appointments, appoint the heads of the Sec. 16. The President shall nominate and, with the consent of
executive departments, ambassadors, other public ministers the Commission on Appointments, appoint the heads of the
and consuls, or officers of the armed forces from the rank of executive departments, ambassadors, other public ministers
colonel or naval captain, and other officers whose and consuls, or officers of the armed forces from the rank of
appointments are vested in him in this Constitution. colonel or naval captain, and other officers whose
He shall also appoint all other officers of the Government appointments are vested in him in this Constitution. He shall
whose appointments are not otherwise provided for by law, also appoint all other officers of the Government whose
and those whom he may be authorized by law to appoint. appointments are not otherwise provided for by law, and those
The Congress may, by law, vest the appointment of other whom he may be authorized by law to appoint. The Congress
officers lower in rank in the President alone, in the courts, or in may, by law, vest the appointment of other officers lower in
the heads of the departments, agencies, commissions or rank in the President alone, in the courts, or in the heads of
boards. departments, agencies, commissions, or boards.
The President shall have the power to make appointments The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or during recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until compulsory, but such appointment shall be effective only until
disapproval by the Commission on Appointments or until the disapproval by the Commission on Appointments or until the
next adjournment of the Congress (Emphasis and 1st three next adjournment of the Congress. 1
paragraphings, supplied). By its plain language, the Constitution has intended that only
The difference in language used is significant. Under the first those grouped under the first sentence are required to
sentence it is clear that the President "nominates" and with the undergo a consenting process. This is a significant departure
consent of the Commission on Appointments "appoints" the from the procedure set forth in the 1935 Charter:
officials enumerated. The second sentence, however, (3) The President shall nominate and with the consent of
significantly uses only the term "appoint" all other officers of the Commission on Appointments, shall appoint the heads of
the Government whose appointments are not otherwise the executive departments and bureaus, officers of the Army
provided for by law, and those whom he may be authorized by from the rank of colonel, of the Navy and Air Forces from the
law to appoint. Deliberately eliminated was any reference to rank of captain to commander, and all other officers of the
nomination. Government whose appointments are not herein otherwise
Thus, the intent of the framers of the Constitution to exclude provided for, and those whom he may be authorized by law to
the appointees mentioned in the second sentence from appoint; but the Congress may by law vest the appointment of
confirmation by the Commission on Appointments is, to my inferior officers, in the President alone, in the courts, or in the
mind, quite clear. So also is the fact that the term "appoint" heads of departments. 2
used in said sentence was not meant to include the three under which, as noted by the majority, "almost all presidential
distinct acts in the appointing process, namely, nomination, appointments required the consent (confirmation) of the
appointment, and commission. For if that were the intent, the Commission on Appointments. 3 As far as the present Charter
same terminologies in the first sentence could have been easily is concerned, no extrinsic aid is necessary to ascertain its
employed. meaning. Had its framers intended otherwise, that is to say, to
There should be no question either that the participation of the require all Presidential appointments clearance from the
Commission on Appointments in the appointment process has Commission on Appointments, they could have simply
been deliberately decreased in the 1987 Constitution compared reenacted the Constitution's 1935 counterpart. 4
to that in the 1935 Constitution, which required that all I agree that the present Constitution classifies four types of
presidential appointments be with the consent of the appointments that the President may make: (1) appointments
Commission on Appointments. of heads of executive departments, ambassadors, other public
The interpretation given by the majority may, indeed, lead to ministers and consuls, or officers of the armed forces from the
some incongruous situations as stressed in the dissenting rank of colonel or naval captain, and those of other officers
opinion of Justice Cruz. The remedy therefor addresses itself to whose appointments are vested in him under the Constitution,
the future. The task of constitutional construction is to including the regular members of the Judicial and Bar Council,
ascertain the intent of the framers of the Constitution and 5 the Chairman and Commissioners of the Civil Service

thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Commission, 6 the Chairman and Commissioners of the
Commission on Elections, 7 and the Chairman and The system of checks and balances is not peculiar to the
Commissioners of the Commission on Audit; 8 (2) those officers provision on appointments. The prohibition, for instance,
whose appointments are not otherwise provided for by law; (3) against the enactment of a bill of attainder operates as a bar
those whom he may be authorized by law to appoint; and (4) against legislative encroachment upon both judicial and
officers lower in rank whose appointments the Congress may executive domains, since the determination of guilt and
vest in the President alone. punishment of the guilty address judicial and executive
But like Justice Cruz in his dissent, I too am aware that authors functions, respective y. 16
of the fundamental law have written a "rather confused And then, the cycle of checks and balances pervading the
Constitution" 9 with respect, to a large extent, to its other Constitution is a sword that cuts both ways. In a very real
parts, and with respect, to a certain extent, to the appointing sense, the power of appointment constitutes a check against
clause itself, in the sense that it leaves us for instance, with legislative authority. In Springer v. Philippine Islands, 17we
the incongruous situation where a consul's appointment needs are told that "Congress may not control the law enforcement
confirmation whereas that of Undersecretary of Foreign process by retaining a power to appoint the individual who will
Affairs, his superior, does not. But the Idiosyncracies, as it execute the laws." 18 This is so, according to one authority,
were, of the Charter is not for us to judge. That is a question because "the appointments clause, rather than 'merely dealing
addressed to the electorate, and who, despite those with etiquette or protocol,' seeks to preserve an executive
"eccentricities," have stamped their approval on that Charter. check upon legislative authority in the interest of avoiding an
"The Court," avers the majority, "will thus construe the undue concentration of power in Congress. " 19
applicable constitutional provisions, not in accordance with The President has sworn to "execute [the] laws. 20 For that
how the executive or the legislative department may want matter, no other department of the Government may
them construed, but in accordance with what they say and discharge that function, least of all Congress. Accordingly, a
provide." 10 statute conferring upon a commission the responsibility of
It must be noted that the appointment of public officials is administering that very legislation and whose members have
essentially an exercise of executive power. 11 The fact that been determined therein, has been held to be repugnant to
the Constitution has provided for a Commission on the Charter. 21 Execution of the laws, it was held, is the
Appointments does not minimize the extent of such a power, concern of the President, and in going about this business, he
much less, make it a shared executive-legislative prerogative. acts by himself or through his men and women, and no other.
In Concepcion v. Paredes, we stated in no uncertain terms that The President, on the other hand, cannot remove his own
"[a]ppointment to office is intrinsically an executive act appointees "except for cause provided by law."
involving the exercise of discretion." 12 Springer v. Philippine 22Parenthetically, this represents a deviation from the rule

Islands 13 on the other hand, underscored the fact that while prevailing in American jurisdiction that "the power of removal .
the legislature may create a public office, it cannot name the . . [is] incident to the power of appointment, 23 although this
official to discharge the functions appurtenant thereto. And has since been tempered in a subsequent case, 24 where it was
while it may prescribe the qualifications therefor, it cannot held that the President may remove only "purely executive
circumscribe such qualifications, which would unduly narrow officers, 25 that is, officers holding office at his pleasure. In
the President's choice. In that event, it is as if it is the Ingles v. Mutuc, 26 this Court held that the President may
legislature itself conferring the appointment. remove incumbents of offices confidential in nature, but we
Thus, notwithstanding the existence of a Commission on likewise made clear that in such a case, the incumbent is not
Appointments, the Chief Executive retains his supremacy as "removed" within the meaning of civil service laws, but that his
the appointing authority. In case of doubt, the same should be term merely expires.
resolved in favor of the appointing power. It is to be observed, indeed, that the Commission on
It is the essence of a republican form of government, like ours, Appointments, as constituted under the 1987 Constitution, is
that "[e]ach department of the government has exclusive itself subject to some check. Under the Charter, "[tlhe
cognizance of matters within its jurisdiction." 14 But like all Commission shall act on all appointments submitted to it within
genuine republican systems, no power is absolutely separate thirty session days of the Congress from their submission. 27
from the other. For republicanism operates on a process of Accordingly, the failure of the Commission to either consent or
checks and balances as well, not only to guard against not consent to the appointments preferred before it within the
excesses by one branch, but more importantly, "to secure prescribed period results in a de facto confirmation thereof
coordination in the workings of the various departments of the Certainly, our founding fathers have fashioned a Constitution
government." 15 Viewed in that light, the Commission on where the boundaries of power are blurred by the
Appointments acts as a restraint against abuse of the predominance of checks and counterchecks, yet amid such a
appointing authority, but not as a means with which to hold rubble of competing powers emerges a structure whose parts
the Chief Executive hostage by a possibly hostile Congress, an are at times jealous of each other, but which are ultimately
unhappy lesson as the majority notes, in our history under the necessary in assuring a dynamic, but stable, society. As Mr.
regime of the 1935 Constitution. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and beginning with the 1976 amendments and some 140 or so
divide fields of black and white. Even the more specific of them amendments thereafter, we had reverted to the presidential
are found to terminate in a penumbra shading gradually from form, 32 without provisions for a commission on appointments.
one extreme to the other. ... When we come to the In fine, while Presidential appointments, under the first
fundamental distinctions it is still more obvious that they must sentence of Section 16, of Article VII of the present
be received with a certain latitude or our government could not Constitution, must pass prior Congressional scrutiny, it is a test
go on. that operates as a mere safeguard against abuse with respect
xxx xxx xxx to those appointments. It does not accord Congress any more
It does not seem to need argument to show that however we than the power to check, but not to deny, the Chief Executive's
may disguise it by veiling words we do not and cannot carry appointing power or to supplant his appointees with its own. It
out the distinction between legislative and executive action is but an exception to the rule. In limiting the Commission's
with mathematical precision and divide the branches into scope of authority, compared to that under the 1935
watertight compartments, were it ever so desirable to do so, Constitution, I believe that the 1987 Constitution has simply
which I am far from believing that it is, or that the Constitution recognized the reality of that exception.
requires. 28 GUTIERREZ, JR., J., dissenting:
xxx xxx xxx I join Justice Isagani A. Cruz in his dissent. I agree that the
We are furthermore told: Constitution, as the supreme law of the land, should never
xxx xxx xxx have any of its provisions interpreted in a manner that results
... (I)t will be vital not to forget that all of these "checks and in absurd or irrational consequences.
counterpoises, which Newton might readily have recognized as The Commission on Appointments is an important
suggestive of the mechanism of the heavens," (W. Wilson, constitutional body which helps give fuller expression to the
Constitutional Government in the United States 56 (1908)] can principles inherent in our presidential system of government.
represent only the scaffolding of a far more subtle "vehicle of Its functions cannot be made innocuous or unreasonably
life (Id. at 192: "The Constitution cannot be regarded as a diminished to the confirmation of a limited number of
mere legal document, to be read as a will or a contract would appointees. In the same manner that the President shares in
be. It must, of the necessity of the case, be a vehicle of life.") the enactment of laws which govern the nation, the legislature,
The great difficulty of any theory less rich, Woodrow Wilson through its Commission on Appointments, gives assurance that
once warned, "is that government is not a machine, but a only those who can pass the scrutiny of both the President and
living thing. It falls, not under the theory of the universe, but Congress will help run the country as officers holding high
under the theory of organic life. It is accountable to Darwin, appointive positions. The third sentence of the first paragraph
not to Newton. It is . . . shaped to its functions by the sheer " ... The Congress may, by law, vest the appointment of
pressure of life. No living thing can have its organs offset other officers lower in rank in the President alone, in the
against each other as checks, and five." (Id. at 56.) Yet courts, or in the heads of departments, agencies, commissions,
because no complex society can have its centers of power not or boards." specifies only "officers lower in rank" as those
"offset against each other as checks," and resist tyranny, the who may, by law, be appointed by the President alone. If as
Model of Separated and Divided Powers offers continuing expounded in the majority opinion, only the limited number of
testimony to the undying dilemmas of progress and justice. 29 officers in the first sentence of Section 16 require confirmation,
xxx xxx xxx the clear intent of the third sentence is lost. In fact both the
As a closing observation, I wish to clear the impression that second and third sentences become meaningless or
the 1973 Constitution deliberately denied the legislature (the superfluous. Superfluity is not to be read into such an
National Assembly under the 1971 draft Constitution) the important part of the Constitution.
power to check executive appointments, and hence, granted I agree with the intervenor that all provisions of the
the President absolute appointing power. 30 As a delegate to, Constitution on appointments must be read together. In
and Vice-President of, the ill-fated 1971 Constitutional providing for the appointment of members of the Supreme
Convention, and more so as the presiding officer of most of its Court and judges of lower courts (Section 9, Article VIII), the
plenary session, I am aware that the Convention did not Ombudsman and his deputies (Section 9, Article XI), the Vice
provide for a commission on appointments on the theory that President as a member of cabinet (Section 3, Article VII) and,
the Prime Minister, the head of the Government and the sole of course, those who by law the President alone may appoint,
appointing power, was himself a member of parliament. For the Constitution clearly provides no need for confirmation. This
this reason, there was no necessity for a separate body to can only mean that all other appointments need confirmation.
scrutinize his appointees. But should such appointees forfeit Where there is no need for confirmation or where there is an
the confidence of the assembly, they are, by tradition, required alternative process to confirmation, the Constitution expressly
to resign, unless they should otherwise have been removed by so declares. Without such a declaration, there must be
the Prime Minister. 31 In effect, it is parliament itself that confirmation.
"approves" such appointments. Unfortunately, supervening The 1973 Constitution dispensed with confirmation by a
events forestalled our parliamentary experiment, and Commission on Appointments because the government it set
up was supposed to be a parliamentary one. The Prime officers specified therein may be appointed by the President
Minister, as head of government, was constantly accountable without the concurrence of the Commission on Appointments.
to the legislature. In our presidential system, the interpretation This interpretation is pregnant with mischievous if not also
which Justice Cruz and myself espouse, is more democratic ridiculous results that presumably were not envisioned by the
and more in keeping with the system of government organized framers.
under the Constitution. One may wonder why it was felt necessary to include the
I, therefore vote to grant the petition. second sentence at all, considering the majority opinion that
CRUZ, J., dissenting: the enumeration in the first sentence of the officers subject to
The view of the respondent, as adopted by the majority confirmation is exclusive on the basis of expressio unius est
opinion, is briefly as follows: Confirmation is required only for exclusio alterius. If that be so, the first sentence would have
the officers mentioned in the first sentence of Section 16, to been sufficient by itself to convey the Idea that all other
wit: (1) the heads of the executive departments; (2) appointees of the President would not need confirmation.
ambassadors, other public ministers and consuls; (3) officers One may also ask why, if the officers mentioned in the second
of the armed forces from the rank of colonel or naval captain; sentence do not need confirmation, it was still felt necessary to
and (4) other officers whose appointments are vested in the provide in the third sentence that the appointment of the other
President in the Constitution. No confirmation is required under officers lower in rank will also not need confirmation as long as
the second sentence for (1) all other officers whose their appointment is vested by law in the President alone. The
appointments are not otherwise provided for by law, and (2) third sentence would appear to be superfluous, too, again in
those whom the President may be authorized by law to view of the first sentence.
appoint. Neither is confirmation required by the third sentence More to the point, what will follow if Congress does not see fit
for those other officers lower in rank whose appointment is to vest in the President alone the appointment of those other
vested by law in the President alone. officers lower in rank mentioned in the third sentence?
Following this interpretation, the Undersecretary of Foreign Conformably to the language thereof, these lower officers will
Affairs, who is not the head of his department, does not have need the confirmation of the Commission on Appointments
to be confirmed by the Commission on Appointments, but the while, by contrast, the higher officers mentioned in the second
ordinary consul, who is under his jurisdiction, must be sentence will not.
confirmed. The colonel is by any standard lower in rank than Thus, a regional director in the Department of Labor and the
the Chairman of the Commission on Human Rights, which was labor arbiters, as officers lower in rank than the bureau
created by the Constitution; yet the former is subject to director, will have to be confirmed if the Congress does not
confirmation but the latter is not because he does not come vest their appointment in the President alone under the third
under the first sentence. The Special Prosecutor, whose sentence. On the other hand, their superior, the bureau
appointment is not vested by the Constitution in the President, director himself, will not need to be confirmed because,
is not subject to confirmation under the first sentence, and according to the majority opinion, he falls not under the first
neither are the Governor of the Central Bank and the members sentence but the second. This is carefulness in reverse, like
of the Monetary Board because they fall under the second checking the bridesmaids but forgetting the bride.
sentence as interpreted by the majority opinion. Yet in the It must be borne in mind that one of the purposes of the
case of the multi-sectoral members of the regional consultative Constitutional Commission was to restrict the powers of the
commission, whose appointment is vested by the Constitution Presidency and so prevent the recurrence of another
in the President under Article X, Section 18, their confirmation dictatorship. Among the many measures taken was the
is required although their rank is decidedly lower. restoration of the Commission on Appointments to check the
I do not think these discrepancies were intended by the appointing power which had been much abused by President
framers as they would lead to the absurd consequences we Marcos. We are now told that even as this body was revived to
should avoid in interpreting the Constitution. limit appointments, the scope of its original authority has itself
There is no question that bureau directors are not required to been limited in the new Constitution. I have to disagree.
be confirmed under the first sentence of Section 16, but that is My own reading is that the second sentence is but a
not the provision we ought to interpret. It is the second continuation of the Idea expressed in the first sentence and
sentence we must understand for a proper resolution of the simply mentions the other officers appointed by the President
issues now before us. Significantly, although there was a long who are also subject to confirmation. The second sentence is
discussion of the first sentence in the Constitutional the later expression of the will of the framers and so must be
Commission, there is none cited on the second sentence either interpreted as complementing the rule embodied in the first
in the Solicitor-General's comment or in the majority opinion. sentence or, if necessary, reversing the original intention to
We can therefore only speculate on the correct interpretation exempt bureau directors from confirmation. I repeat that there
of this provision in the light of the first and third sentences of were no debates on this matter as far as I know, which simply
Section 16 or by reading this section in its totality. means that my humble conjecture on the meaning of Section
The majority opinion says that the second sentence is the 16 is as arguable, at least, as the suppositions of the majority.
exception to the first sentence and holds that the two sets of We read and rely on the same records. At any rate, this view is
more consistent with the general purpose of Article VII, which, I vote to grant the petition.
to repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page
520, Volume II, of the Record of the Constitutional
Convention:
Mr. Foz: Madam President, this is the third proposed
amendment on page 7, line 28, 1 propose to put a period (.)
after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts
the proposed amendment because it makes it clear that those
other officers mentioned therein do not have to be confirmed
by the Commission on Appointments.
However, the records do not show what particular part of
Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest that
the body was considering the first sentence of the said section,
which I reiterate is not the controversial provision. In any case,
although the excerpt shows that the proposed amendment of
Commissioner Foz was accepted by the committee, it is not
reflected, curiously enough, in the final version of Section 16
as a perusal thereof will readily reveal. Whether it was deleted
later in the session or reworded by the style committee or
otherwise replaced for whatever reason will need another
surmise on this rather confused Constitution.
I need only add that the records of the Constitutional
Commission are merely extrinsic aids and are at best
persuasive only and not necessarily conclusive. Interestingly,
some quarters have observed that the Congress is not
prevented from adding to the list of officers subject to
confirmation by the Commission on Appointments and cite the
debates on this matter in support of this supposition. It is true
enough that there was such a consensus, but it is equally true
that this thinking is not at all expressed, or even only implied,
in the language of Section 16 of Article VII. Which should
prevail then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in
nature, but there is no question either that it is not absolute or
unlimited. The rule re- established by the new Constitution is
that the power requires confirmation by the Commission on
Appointments as a restraint on presidential excesses, in line
with the system of checks and balances. I submit it is the
exception to this rule, and not the rule, that should be strictly
construed.
In my view, the only officers appointed by the President who
are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the
Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in
rank," but only when their appointment is vested by law in the
President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while
not covered by the first sentence of Section 16, comes under
the second sentence thereof as I would interpret it and so is
also subject to confirmation.
Republic of the Philippines Sec. 16. The President shall nominate and, with the consent of
SUPREME COURT the Commission on Appointments, appoint the heads of the
Manila executive departments, ambassadors, other public ministers and
EN BANC consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are
G.R. No. 111243 May 25, 1994 vested in him in this Constitution. He shall also appoint all other
JESUS ARMANDO A.R. TARROSA, petitioner, officers of the Government whose appointments are not
vs. otherwise provided for by law, and those whom he may be
GABRIEL C. SINGSON and HON. SALVADOR M. authorized by law to appoint. The Congress may, by law, vest
ENRIQUEZ III, respondents the appointment of other officers lower in rank in the President
Marlon B. Llaunder for petitioner. alone, in the courts, or in the heads of department, agencies,
commissions, or boards . . . (Emphasis supplied).
QUIASON, J.: Respondents also aver that the Bangko Sentral has its own
This is a petition for prohibition filed by petitioner as a budget and accordingly, its budgetary requirements are not
"taxpayer," questioning the appointment of respondent Gabriel subject to the provisions of the General Appropriations Act.
Singson as Governor of the Bangko Sentral Ng Pilipinas for not We dismiss the petition.
having been confirmed by the Commission on Appointments. II
The petition seeks to enjoin respondent Singson from the The instant petition is in the nature of a quo warranto
performance of his functions as such official until his proceeding as it seeks the ouster of respondent Singson and
appointment is confirmed by the Commission on Appointments alleges that the latter is unlawfully holding or exercising the
and respondent Salvador M. Enriquez, Secretary of Budget and powers of Governor of the Bangko Sentral (Cf. Castro v. Del
Management, from disbursing public funds in payment of the Rosario, 19 SCRA 196 [1967]). Such a special civil action can
salaries and emoluments of respondent Singson. only be commenced by the Solicitor General or by a "person
I claiming to be entitled to a public office or position unlawfully
Respondent Singson was appointed Governor of the Bangko held or exercised by another" (Revised Rules of Court, Rule 66,
Sentral by President Fidel V. Ramos on July 2, 1993, effective Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
on July 6, 1993 (Rollo, p. 10). In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held
Petitioner argues that respondent Singson's appointment is null that the petitioner therein, who did not aver that he was entitled
and void since it was not submitted for confirmation to the to the office of the City Engineer of Cabanatuan City, could not
Commission on Appointments. The petition is anchored on the bring the action for quo warranto to oust the respondent from
provisions of Section 6 of R.A. No. 7653, which established the said office as a mere usurper.
Bangko Sentral as the Central Monetary Authority of the Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910,
Philippines. Section 6, Article II of R.A. No. 7653 provides: it was held that the question of title to an office, which must be
Sec. 6. Composition of the Monetary Board. The powers and resolved in a quo warranto proceeding, may not be determined
functions of the Bangko Sentral shall be exercised by the Bangko in a suit to restrain the payment of salary to the person holding
Sentral Monetary Board, hereafter referred to as the Monetary such office, brought by someone who does not claim to be the
Board, composed of seven (7) members appointed by the one entitled to occupy the said office.
President of the Philippines for a term of six (6) years. It is obvious that the instant action was improvidently brought
The seven (7) members are: by petitioner. To uphold the action would encourage every
(a) The Governor of the Bangko Sentral, who shall be the disgruntled citizen to resort to the courts, thereby causing
Chairman of the Monetary Board. The Governor of the Bangko incalculable mischief and hindrance to the efficient operation of
Sentral shall be head of a department and his appointment shall the governmental machinery (See Roosevelt v. Draper, 7 Abb.
be subject to confirmation by the Commission on Appointments. Pr. 108, 23 N.Y. 218).
Whenever the Governor is unable to attend a meeting of the Its capstone having been removed, the whole case of petitioner
Board, he shall designate a Deputy Governor to act as his collapses. Hence, there is no need to resolve the question of
alternate: Provided, That in such event, the Monetary Board whether the disbursement of public funds to pay the salaries
shall designate one of its members as acting Chairman . . . and emoluments of respondent Singson can be enjoined.
(Emphasis supplied). Likewise, the Court refrains from passing upon the
In their comment, respondents claim that Congress exceeded constitutionality of Section 6, R.A. No. 7653 in deference to the
its legislative powers in requiring the confirmation by the principle that bars a judicial inquiry into a constitutional question
Commission on Appointments of the appointment of the unless the resolution thereof is indispensable for the
Governor of the Bangko Sentral. They contend that an determination of the case (Fernandez v. Torres, 215 SCRA 489
appointment to the said position is not among the appointments [1992]).
which have to be confirmed by the Commission on However for the information of all concerned, we call attention
Appointments, citing Section 16 of Article VII of the Constitution to our decision in Calderon v. Carale, 208 SCRA 254 (1992), with
which provides that: Justice Isagani A. Cruz dissenting, where we ruled that Congress
cannot by law expand the confirmation powers of the
Commission on Appointments and require confirmation of
appointment of other government officials not expressly
mentioned in the first sentence of Section 16 of Article VII of
the Constitution.
WHEREFORE, the petition is DENIED. No pronouncement as to
costs.
SO ORDERED.
Feliciano, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug and Kapunan, JJ., concur.
Narvasa, C.J. and Cruz, JJ., are on leave.

Separate Opinions
PADILLA, J., concurring:
I concur in the result. Instead, however, of basing the petition's
dismissal mainly on technicality, I would anchor said dismissal
squarely on the ruling laid down by the Court in Calderon vs.
Carale, 208 SCRA 254 (1992), to the effect that appointments
by the President of the Philippines, which under the Constitution
(Sec. 16, Article VII) are not among those required to be
confirmed by the Commission on Appointments, may not, by
legislation, be made subject to such confirmation. This ruling
was a reiteration of the doctrine earlier laid down in Sarmiento
vs. Mison, (G.R. No. 79974, 156 SCRA 549, December 17, 1987)
and Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA 160, April
13, 1989).

# Separate Opinions

PADILLA, J., concurring:


I concur in the result. Instead, however, of basing the petition's
dismissal mainly on technicality, I would anchor said dismissal
squarely on the ruling laid down by the Court in Calderon vs.
Carale, 208 SCRA 254 (1992), to the effect that appointments
by the President of the Philippines, which under the Constitution
(Sec. 16, Article VII) are not among those required to be
confirmed by the Commission on Appointments, may not, by
legislation, be made subject to such confirmation. This ruling
was a reiteration of the doctrine earlier laid down in Sarmiento
vs. Mison, (G.R. No. 79974, 156 SCRA 549, December 17, 1987)
and Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA 160, April
13, 1989).
Republic of the Philippines . . . Consequently, we rule that the President of the Philippines
SUPREME COURT acted within her constitutional authority and power in appointing
Manila respondent Salvador Mison, Commissioner of the Bureau of
EN BANC Customs, without submitting his nomination to the Commission
on Appointments for confirmation. . . .
G.R. No. 91636 April 23, 1992 . . . In the 1987 Constitution, however, as already pointed out,
PETER JOHN D. CALDERON, petitioner, the clear and expressed intent of its framers was to exclude
vs. presidential appointments from confirmation by the Commission
BARTOLOME CARALE, in his capacity as Chairman of on Appointments, except appointments to offices expressly
the National Labor Relations Commission, EDNA mentioned in the first sentence of Sec. 16, Art.VII.
BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. Consequently, there was no reason to use in the third sentence
LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA, of Sec. 16, Article VII the word "alone" after the word
VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, "President" in providing that Congress may by law vest the
IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. appointment of lower-ranked officers in the President alone, or
PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, in the courts, or in the heads of departments, because the power
BERNABE S. BATUHAN and OSCAR N. ABELLA, in their to appoint officers whom he (the president) may be authorized
capacity as Commissioners of the National Labor by law to appoint is already vested in the President, without
Relations Commission, and GUILLERMO CARAGUE, in need of confirmation by the Commission on Appointments, in
his capacity as Secretary of Budget and Management, the second sentence of the same Sec. 16, Article VII." (emphasis
respondents. supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time
PADILLA, J.: involving the appointment of the Chairman of the Commission
Controversy is focused anew on Sec. 16, Art. VII of the 1987 on Human Rights. Adhering to the doctrine in Mison, the Court
Constitution which provides: explained:
Sec. 16. The President shall nominate and, with the consent of . . . Since the position of Chairman of the Commission on Human
the Commission on Appointments, appoint the heads of the Rights is not among the positions mentioned in the first
executive departments, ambassadors, other public ministers and sentence of Sec. 16, Art. VII of the 1987 Constitution,
consuls, or officers of the armed forces from the rank of colonel appointments to which are to be made with the confirmation of
or naval captain, and other officers whose appointments are the Commission on Appointments, it follows that the
vested in him in this Constitution. He shall also appoint all other appointment by the President of the Chairman of the CHR is to
officers of the Government whose appointments are not be made without the review or participation of the Commission
otherwise provided for by law, and those whom he may be on Appointments. To be more precise, the appointment of the
authorized by law to appoint. The Congress may, by law, vest Chairman and Members of the Commission on Human Rights is
the appointment of other officers lower in rank in the President not specifically provided for in the Constitution itself, unlike the
alone, in the courts, or in the heads of departments, agencies, Chairmen and Members of the Civil Service Commission, the
commissions, or boards. Commission on Elections and the Commission on Audit, whose
The President shall have the power to make appointments appointments are expressly vested by the Constitution in the
during the recess of the Congress, whether voluntary or president with the consent of the Commission on Appointments.
compulsory, but such appointments shall be effective only until The president appoints the Chairman and Members of The
disapproval by the Commission on Appointments or until the Commission on Human Rights pursuant to the second sentence
next adjournment of the Congress. 1 in Section 16, Art. VII, that is, without the confirmation of the
The power of the Commission on Appointments (CA for brevity) Commission on Appointments because they are among the
to confirm appointments, contained in the aforequoted officers of government "whom he (the President) may be
paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento authorized by law to appoint." And Section 2(c), Executive Order
III vs. Mison 2 as follows: No. 163, 5 May 1987, authorizes the President to appoint the
. . . it is evident that the position of Commissioner of the Bureau Chairman and Members of the Commission on Human Rights.
of Customs (a bureau head) is not one of those within the first Consistent with its rulings in Mison and Bautista, in Teresita
group of appointments where the consent of the Commission on Quintos Deles, et al. v. The Commission on Constitutional
Appointments is required. As a matter of fact, as already pointed Commissions, et al.,4 the power of confirmation of the
out, while the 1935 Constitution includes "heads of bureaus" Commission on Appointments over appointments by the
among those officers whose appointments need the consent of President of sectoral representatives in Congress was upheld
the Commission on Appointments, the 1987 Constitution, on the because:
other hand, deliberately excluded the position of "heads of . . . Since the seats reserved for sectoral representatives in
bureaus" from appointments that need the consent paragraph 2, Section 5, Art. VI may be filled by appointment by
(confirmation) of the Commission on Appointments. the President by express provision of Section 7, Art. XVIII of the
Constitution, it is indubitable that sectoral representatives to the
House of Representatives are among the "other officers whose Constitution, as Congress may, by law, require confirmation by
appointments are vested in the President in this Constitution," the Commission on Appointments of other officers appointed by
referred to in the first sentence of Section 16, Art. VII whose the President additional to those mentioned in the first sentence
appointments are subject to confirmation by the Commission on of Section 16 of Article VII of the Constitution. Petitioner claims
Appointments. that the Mison and Bautista rulings are not decisive of the issue
From the three (3) cases above-mentioned, these doctrines are in this case for in the case at bar, the President issued
deducible: permanent appointments to the respondents without submitting
1. Confirmation by the Commission on Appointments is them to the CA for confirmation despite passage of a law (RA
required only for presidential appointees mentioned in the first 6715) which requires the confirmation by the Commission on
sentence of Section 16, Article VII, including, those officers Appointments of such appointments.
whose appointments are expressly vested by the Constitution The Solicitor General, on the other hand, contends that RA 6715
itself in the president (like sectoral representatives to Congress which amended the Labor Code transgressesSection 16, Article
and members of the constitutional commissions of Audit, Civil VII by expanding the confirmation powers of the Commission on
Service and Election). Appointments without constitutional basis. Mison and Bautista
2. Confirmation is not required when the President laid the issue to rest, says the Solicitor General, with the
appoints other government officers whose appointments are not following exposition:
otherwise provided for by law or those officers whom he may As interpreted by this Honorable Court in the Mison case,
be authorized by law to appoint (like the Chairman and Members confirmation by the Commission on Appointments is required
of the Commission on Human Rights). Also, as observed in exclusively for the heads of executive departments,
Mison, when Congress creates inferior offices but omits to ambassadors, public ministers, consuls, officers of the armed
provide for appointment thereto, or provides in an forces from the rank of colonel or naval captain, and other
unconstitutional manner for such appointments, the officers are officers whose appointments are vested in the President by the
considered as among those whose appointments are not Constitution, such as the members of the various Constitutional
otherwise provided for by law. Commissions. With respect to the other officers whose
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), appointments are not otherwise provided for by the law and to
amending the Labor Code (PD 442) was approved. It provides those whom the President may be authorized by law to appoint,
in Section 13 thereof as follows: no confirmation by the Commission on Appointments is
xxx xxx xxx required.
The Chairman, the Division Presiding Commissioners and other Had it been the intention to allow Congress to expand the list of
Commissioners shall all be appointed by the President, subject officers whose appointments must be confirmed by the
to confirmation by the Commission on Appointments. Commission on Appointments, the Constitution would have said
Appointments to any vacancy shall come from the nominees of so by adding the phrase "and other officers required by law" at
the sector which nominated the predecessor. The Executive the end of the first sentence, or the phrase, "with the consent
Labor Arbiters and Labor Arbiters shall also be appointed by the of the Commission on Appointments" at the end of the second
President, upon recommendation of the Secretary of Labor and sentence. Evidently, our Constitution has significantly omitted to
Employment, and shall be subject to the Civil Service Law, rules provide for such additions.
and regulations. 5 The original text of Section 16 of Article VII of the present
Pursuant to said law (RA 6715), President Aquino appointed the Constitution as embodied in Resolution No. 517 of the
Chairman and Commissioners of the NLRC representing the Constitutional Commission reads as follows:
public, workers and employers sectors. The appointments stated "The President shall nominate and, with the consent of the
that the appointees may qualify and enter upon the performance Commission on Appointments, shall appoint the heads of the
of the duties of the office. After said appointments, then Labor executive departments and bureaus, ambassadors, other public
Secretary Franklin Drilon issued Administrative Order No. 161, ministers and consuls, or officers of the armed forces from the
series of 1989, designating the places of assignment of the rank of captain or commander, and all other officers of the
newly appointed commissioners. Government whose appointments are not herein otherwise
This petition for prohibition questions the constitutionality and provided for by law, and those whom he may be authorized by
legality of the permanent appointments extended by the law to appoint. The Congress may by law vest the appointment
President of the Philippines to the respondents Chairman and of inferior officers in the President alone, in the courts or in the
Members of the National Labor Relations Commission (NLRC), heads of the department."
without submitting the same to the Commission on Three points should be noted regarding sub-section 3 of Section
Appointments for confirmation pursuant to Art. 215 of the Labor 10 of Article VII of the 1935 Constitution and in the original text
Code as amended by said RA 6715. of Section 16 of Article VII of the present Constitution as
Petitioner insists on a mandatory compliance with RA 6715 proposed in Resolution No. 517.
which has in its favor the presumption of validity. RA 6715 is First, in both of them, the appointments of heads of bureaus
not, according to petitioner, an encroachment on the appointing were required to be confirmed by the Commission on
power of the executive contained in Section 16, Art. VII, of the Appointments.
Second, in both of them, the appointments of other officers, The second sentence of Sec. 16, Art. VII refers to all other
"whose appointments are not otherwise provided for by law to officers of the government whose appointments are not
appoint" are expressly made subject to confirmation by the otherwise provided for by law and those whom the President
Commission on Appointments. However, in the final version of may be authorized by law to appoint.
Resolution No. 517, as embodied in Section 16 of Article VII of Indubitably, the NLRC Chairman and Commissioners fall within
the present Constitution, the appointment of the above the second sentence of Section 16, Article VII of the
mentioned officers (heads of bureaus; other officers whose Constitution, more specifically under the "third groups" of
appointments are not provided for by law; and those whom he appointees referred to in Mison, i.e. those whom the President
may be authorized by law to appoint) are excluded from the list may be authorized by law to appoint. Undeniably, the Chairman
of those officers whose appointments are to be confirmed by and Members of the NLRC are not among the officers mentioned
the Commission on Appointments. This amendment, reflected in in the first sentence of Section 16, Article VII whose
Section 16 of Article VII of the Constitution, clearly shows the appointments requires confirmation by the Commission on
intent of the framers to exclude such appointments from the Appointments. To the extent that RA 6715 requires confirmation
requirement of confirmation by the Commission on by the Commission on Appointments of the appointments of
Appointments. respondents Chairman and Members of the National Labor
Third, under the 1935 Constitution the word "nominate" Relations Commission, it is unconstitutional because:
qualifies the entire Subsection 3 of Section 10 of Article VII 1) it amends by legislation, the first sentence of Sec. 16,
thereof. Art. VII of the Constitution by adding thereto appointments
Respondent reiterates that if confirmation is required, the three requiring confirmation by the Commission on Appointments; and
(3) stage process of nomination, confirmation and appointment 2) it amends by legislation the second sentence of Sec.
operates. This is only true of the first group enumerated in 16, Art. VII of the Constitution, by imposing the confirmation of
Section 16, but the word nominate does not any more appear the Commission on Appointments on appointments which are
in the 2nd and 3rd sentences. Therefore, the president's otherwise entrusted only with the President.
appointment pursuant to the 2nd and 3rd sentences needs no Deciding on what laws to pass is a legislative prerogative.
confirmation. 6 Determining their constitutionality is a judicial function. The
The only issue to be resolved by the Court in the present case Court respects the laudable intention of the legislature.
is whether or not Congress may, by law, require confirmation by Regretfully, however, the constitutional infirmity of Sec. 13 of
the Commission on Appointments of appointments extended by RA 6715 amending Art. 215 of the Labor Code, insofar as it
the president to government officers additional to those requires confirmation of the Commission on Appointments over
expressly mentioned in the first sentence of Sec. 16, Art. VII of appointments of the Chairman and Member of the National
the Constitution whose appointments require confirmation by Labor Relations Commission (NLRC) is, as we see it, beyond
the Commission on Appointments. redemption if we are to render fealty to the mandate of the
To resolve the issue, we go back to Mison where the Court Constitution in Sec. 16, Art. VII thereof.
stated: Supreme Court decisions applying or interpreting the
. . . there are four (4) groups of officers whom the President Constitution shall form part of the legal system of the
shall appoint. These four (4) groups, to which we will hereafter Philippines.8 No doctrine or principle of law laid down by the
refer from time to time, are: Court in a decision rendered en banc or in division may be
First, the heads of the executive departments, ambassadors, modified or reversed except by the Court sitting en banc.9
other public ministers and consuls, officers of the armed forces . . . The interpretation upon a law by this Court constitutes, in a
from the rank of colonel or naval captain, and other officers way, a part of the law as of the date that law was originally
whose appointments are vested in him in this Constitution; passed, since this Court's construction merely establishes the
Second, all other officers of the Government whose contemporaneous legislative intent that the law thus construed
appointments are not otherwise provided for by law; intends to effectuate. The settled rule supported by numerous
Third, those whom the president may be authorized by law to authorities is a restatement of the legal maxim "legis
appoint; interpretado legis vim obtinent" the interpretation placed
Fourth, officers lower in rank whose appointments the Congress upon the written law by a competent court has the force of law.
may by law vest in the President alone. 7 10

Mison also opined: The rulings in Mison, Bautista and Quintos-Deles have
In the course of the debates on the text of Section 16, there interpreted Art. VII, Sec. 16 consistently in one manner. Can
were two (2) major changes proposed and approved by the legislation expand a constitutional provision after the Supreme
Commission. These were (1) the exclusion of the appointments Court has interpreted it?
of heads of bureaus from the requirement of confirmation by In Endencia and Jugo vs. David, 11 the Court held:
the Commission on Appointments; and (2) the exclusion of By legislative fiat as enunciated in Section 13, Republic Act No.
appointments made under the second sentence of the section 590, Congress says that taxing the salary of a judicial officer is
from the same requirement. . . . not a decrease of compensation. This is a clear example of
interpretation or ascertainment of the meaning of the phrase
"which shall not be diminished during their continuance in to many cases of abuse of such power of confirmation.
office," found in Section 9, Article VIII of the Constitution, Subsection 3, Section 10, Art. VII of the 1935 Constitution
referring to the salaries of judicial officers. provided:
xxx xxx xxx 3. The President shall nominate and with the consent of
The rule is recognized elsewhere that the legislature cannot pass the Commission on Appointments, shall appoint the heads of the
any declaratory act, or act declaratory of what the law was executive departments and bureaus, officers of the Army from
before its passage, so as to give it any binding weight with the the rank of colonel, of the Navy and Air Forces from the rank of
courts. A legislative definition of a word as used in a statute is captain or commander, and all other officers of the Government
not conclusive of its meaning as used elsewhere; otherwise, the whose appointments are not herein otherwise provided for, and
legislature would be usurping a judicial function in defining a those whom he may be authorized by law to appoint; . . .
term. (11 Am. Jur., 914, emphasis supplied). The deliberate limitation on the power of confirmation of the
The legislature cannot, upon passing law which violates a Commission on Appointments over presidential appointments,
constitutional provision, validate it so as to prevent an attack embodied in Sec. 16, Art. VII of the 1987 Constitution, has
thereon in the courts, by a declaration that it shall be so undoubtedly evoked the displeasure and disapproval of
construed as not to violate the constitutional inhibition. (11 Am., members of Congress. The solution to the apparent problem, if
Jur., 919, emphasis supplied). indeed a problem, is not judicial or legislative but constitutional.
We have already said that the Legislature under our form of A future constitutional convention or Congress sitting as a
government is assigned the task and the power to make and constituent (constitutional) assembly may then consider either
enact laws, but not to interpret them. This is more true with a return to the 1935 Constitutional provisions or the adoption of
regard to the interpretation of the basic law, the Constitution, a hybrid system between the 1935 and 1987 constitutional
which is not within the sphere of the Legislative department. If provisions. Until then, it is the duty of the Court to apply the
the Legislature may declare what a law means, or what a 1987 Constitution in accordance with what it says and not in
specific portion of the Constitution means, especially after the accordance with how the legislature or the executive would want
courts have in actual case ascertained its meaning by it interpreted.
interpretation and applied it in a decision, this would surely WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor
cause confusion and instability in judicial processes and court Code as amended by RA 6715 insofar as it requires the
decisions. Under such a system, a final court determination of a confirmation of the Commission on Appointments of
case based on a judicial interpretation of the law or of the appointments of the Chairman and Members of the National
Constitution may be undermined or even annulled by a Labor Relations Commission (NLRC) is hereby declared
subsequent and different interpretation of the law or of the unconstitutional and of no legal force and effect.
Constitution by the Legislative department that would be neither SO ORDERED.
wise nor desirable, being clearly violative of the fundamental Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin, Grio-
principles of our constitutional system of government, Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon,
particularly those governing the separation of powers. JJ., concur.
14(Emphasis supplied) Bellosillo, J., took no part.
Congress, of course, must interpret the Constitution, must
estimate the scope of its constitutional powers when it sets out
to enact legislation and it must take into account the relevant
constitutional prohibitions. 15 Separate Opinions
. . . The Constitution did not change with public opinion.
It is not only the same words, but the same in meaning . . . and GUTIERREZ, JR., concurring:
as long as it it speaks not only in the same words, but with the When the issues in this petition were first raised in Sarmiento
same meaning and intent with which it spoke when it came from III v. Mison (156 SCRA 549 [1987]), I joined Justice Cruz in a
the hands of its framers, and was voted and adopted by the dissent because I felt that the interpretation of Section 16,
people . . . 16 Article VII by the majority of the Court results in absurd or
The function of the Court in passing upon an act of Congress is irrational consequences. The framers could not have intended
to "lay the article of the Constitution which is invoked beside the what the majority ruled to be the meaning of the provision.
statute which is challenged and to decide whether the latter When the question was again raised in Bautista v. Salonga (172
squares with the former" and to "announce its considered SCRA 160 [1989]), I reiterated my dissent and urged a re-
judgment upon the question." 17 examination of the doctrine stated in Sarmiento v. Mison.
It can not be overlooked that Sec. 16, Art. VII of the 1987 The issue is again before us. Even as I continue to believe that
Constitution was deliberately, not unconsciously, intended by the majority was wrong in the Sarmiento and Bautista cases, I
the framers of the 1987 Constitution to be a departure from the think it is time to finally accept the majority opinion as the
system embodied in the 1935 Constitution where the Court's ruling on the matter and one which everybody should
Commission on Appointments exercised the power of respect. There will be no end to litigation if, everytime a high
confirmation over almost all presidential appointments, leading government official is appointed without confirmation by the
Commission on Appointments, another petition is filed with this
Court.
I, therefore, VOTE with the majority to DISMISS the PETITION.
CRUZ, J., dissenting:
I dissent on the basis of my dissent in Sarmiento v. Mison, which
I believe should be re-examined instead of being automatically
re-affirmed simply because of its original adoption. I do not
believe we should persist in error on the ground merely of
adherence to judicial precedent, however unsound.
Separate Opinion
GUTIERREZ, JR., J., concurring:
When the issues in this petition were first raised in Sarmiento
III v. Mison (156 SCRA 549 [1987]), I joined Justice Cruz in a
dissent because I felt that the interpretation of Section 16,
Article VII by the majority of the Court results in absurd or
irrational consequences. The framers could not have intended
what the majority ruled to be the meaning of the provision.
When the question was again raised in Bautista v. Salonga (172
SCRA 160 [1989]), I reiterated my dissent and urged a re-
examination of the doctrine stated in Sarmiento v. Mison.
The issue is again before us. Even as I continue to believe that
the majority was wrong in the Sarmiento and Bautista cases, I
think it is time to finally accept the majority opinion as the
Court's ruling on the matter and one which everybody should
respect. There will be no end to litigation if, everytime a high
government official is appointed without confirmation by the
Commission on Appointments, another petition is filed with this
Court.
I, therefore, VOTE with the majority to DISMISS the PETITION.
CRUZ, J., dissenting:
I dissent on the basis of my dissent in Sarmiento v. Mison, which
I believe should be re-examined instead of being automatically
re-affirmed simply because of its original adoption. I do not
believe we should persist in error on the ground merely of
adherence to judicial precedent, however unsound.
Republic of the Philippines from among the senior officers down to the rank of the chief
SUPREME COURT superintendent, subject to confirmation by the Commission on
Manila Appointments: Provided, That the Chief of the PNP shall serve a
EN BANC term of office not to exceed four (4) years: Provided, further,
G.R. No. 107369 August 11, 1999 That in times of war or other national emergency declared by
JESULITO A. MANALO, petitioner, Congress, the President may extend such term of office."1
vs. (emphasis supplied).
PEDRO G. SISTOZA, REGINO ARO III, NICASIO MA. Sec. 31. Appointment of PNP Officers and Members. The
CUSTODIO, GUILLERMO DOMONDON, RAYMUNDO L. appointment of the officers and members of the PNP shall be
LOGAN, WILFREDO R. REOTUTAR, FELINO C. PACHECO, effected in the following manner:
JR., RUBEN J. CRUZ, GERONIMO B. VALDERRAMA, (a) Police Officer I to Senior Police Officer IV Appointed by
MERARDO G. ABAYA, EVERLINO B. NARTATEZ, ENRIQUE the PNP regional director for regional personnel or by the Chief
T. BULAN, PEDRO J. NAVARRO, DOMINADOR M. of the PNP for the national headquarters personnel and attested
MANGUBAT, RODOLFO M. GARCIA and HONORABLE by the Civil Service Commission;
SALVADOR M. ENRIQUEZ II In His Capacity as Secretary (b) Inspector to Superintendent Appointed by the Chief of the
of Budget and Management, respondents. PNP, as recommended by their immediate superiors, and
PURISIMA, J.: attested by the Civil Service Commission;
The case at bar is not of first impression. The issue posed (c) Senior Superintendent to Deputy Director General
concerning the limits of the power of the Commission on Appointed by the President upon recommendation of the Chief
Appointments to confirm appointments issued by the Chief of the PNP, with the proper endorsement by the Chairman of
Executive has been put to rest in a number of cases. The court the Civil Service Commission and subject to confirmation by the
finds no basis for departing from the ruling laid down in those Commission on Appointments; and
cases. (d) Director General Appointed by the President from among
In this special civil action for Prohibition under Rule 65 of the the senior officers down to the rank of chief superintendent in
Revised Rules of Court, petitioners question the constitutionality the service, subject to confirmation by the Commission on
and legality of the permanent appointments issued by former Appointments; Provided, That the Chief of the PNP shall serve a
President Corazon C. Aquino to the respondent senior officers of tour of duty not to exceed four (4) years; Provided, further,
the Philippine National Police who were promoted to the ranks That, in times of war or other national emergency declared by
of Chief Superintendent and Director without their appointments Congress, the President may extend such tour of duty.
submitted to the Commission on Appointments for confirmation (emphasis supplied).
under Section 16, Article VII of the 1987 Constitution and In accordance therewith, on March 10, 1992, the President of
Republic Act 6975 otherwise known as the Local Government the Philippines, through then Executive Secretary Franklin M.
Act of 1990. Impleaded in the case is the former Secretary of Drilon, promoted the fifteen (15) respondent police officers
Budget and Management Salvador M. Enriquez III, who herein, by appointing them to positions in the Philippine National
approved and effected the disbursements for the salaries and Police with the rank of Chief Superintendent to
other emoluments of subject police officers.1wphi1.nt Director2, namely:
The antecedents facts are as follows: Chief Supt. PEDRO G. SISTOZA Director
On December 13, 1990, Republic Act 6975 creating the
Department of Interior and Local Government was signed into
law by former President Corazon C. Aquino. Pertinent provisions
Chief Supt. REGINO ARO III Director
of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP Chief.
The command and direction of the PNP shall be vested in the
Chief Supt. NICASIO MA. Director
Chief of the PNP who shall have the power to direct and control
CUSTODIO
tactical as well as strategic movements, deployment, placement,
utilization of the PNP or any of its units and personal, including
Chief Supt. GUILLERMO Director
its equipment, facilities and other resources. Such command and
DOMONDON
direction of the Chief of the PNP may be delegated to
subordinate officials with respect to the units under their
Chief Supt. RAYMUNDO L. Director
respective commands, in accordance with the rules and
LOGAN
regulations prescribed by the Commission. The Chief of the PNP
shall also have the power to issue detailed implementing policies
Senior Supt. WILFREDO Chief
and instructions regarding personnel, funds, properties, records,
REOTUTAR Superintendent
correspondence and such other matters as may be necessary to
effectively carry out the functions, powers and duties of the
Bureau. The Chief of the PNP shall be appointed by the President
Senior Supt. FELINO C. Chief B. The Philippine National Police is akin to the Armed Forces
PACHECO, JR. Superintendent where the Constitution specifically requires confirmation by the
Commission on Appointments.
II. Respondent Secretary in allowing and/or effecting
Senior Supt. RUBEN J. CRUZ Chief
disbursements in favor of respondent officers despite the
Superintendent
unconstitutionality and illegality of their appointments is acting
without or in excess of his jurisdiction or with grave abuse of
Senior Supt. GERONIMO B. Chief
discretion.
VALDERRAMA Superintendent
The petition must fail. It is not impressed with merit.
Petitioner theorizes that Republic Act 6975 enjoys the
Senior Supt. MERARDO G. ABAYA Chief
presumption of constitutionality and that every statute passed
Superintendent
by Congress is presumed to have been carefully studied and
considered before its enactment. He maintains that the respect
Senior Supt. EVERLINO Chief
accorded to each department of the government requires that
NARTATEZ Superintendent
the court should avoid, as much as possible, deciding
constitutional questions.
Senior Supt. ENRIQUE T. BULAN Chief
The Court agrees with petitioner. However, it is equally
Superintendent
demanded from the courts, as guardians of the Constitution, to
see to it that every law passed by Congress is not repugnant to
Senior Supt. PEDRO J. NAVARRO Chief
the organic law. Courts have the inherent authority to determine
Superintendent
whether a statute enacted by the legislature transcends the limit
delineated by the fundamental law.4 When it does, the courts
Senior Supt. DOMINADOR Chief
will not hesitate to strike down such unconstitutional law.
MANGUBAT Superintendent
The power to make appointments is vested in the Chief
Executive by Section 16, Article VII of the Constitution, which
Senior Supt. RODOLFO M. Chief provides:
GARCIA Superintendent Sec. 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the
The appointments of respondent police officers were in a executive departments, ambassadors, other public ministers and
permanent capacity. Their letters of appointment stated in part: consuls, or officers of the armed forces from the rank of colonel
By virtue hereof, they may qualify and enter upon the or naval captain, and other officers whose appointments are
performance of the duties of the office, furnishing this office and vested in him in this Constitution. He shall also appoint all other
the Civil Service Commission with copies of their oath of office.3 officers of the Government whose appointments are not
Without their names submitted to the Commission on otherwise provided for by law, and those whom he may be
Appointments for confirmation, the said police officers took their authorized by law to appoint. The Congress may, by law, vest
oath of office and assumed their respective positions. the appointment of other officers lower in rank in the President
Thereafter, the Department of Budget and Management, under alone, in the courts, or in the heads of departments, agencies,
the then Secretary Salvador M. Enriquez III, authorized commissions, or boards.
disbursements for their salaries and other emoluments. The President shall have the power to make appointments
On October 21, 1992, the petitioner brought before this Court during the recess of the Congress, whether voluntary or
this present original petition for prohibition, as a taxpayer suit, compulsory, but such appointments shall be effective only until
to assail the legality of subject appointments and disbursements disapproval by the Commission on Appointments or until the
made therefor. next adjournment of the Congress.
Petitioner contends that: The aforecited provision of the Constitution has been the subject
I. Respondent officers, in assuming their offices and discharging of several cases on the issue of the restrictive function of the
the functions attached thereto, despite their invalid Commission on Appointments with respect to the appointing
appointments, in view of the failure to secure the required power of the President. This court touched upon the historical
confirmation of the Commission on Appointments as required by antecedent of the said provision in the case of Sarmiento III vs.
the Constitution and the law, are acting without or in excess of Mison5 in which it was ratiocinated upon that Section 16 of
their jurisdiction or with grave abuse of discretion, considering Article VII of the 1987 Constitution requiring confirmation by the
that: Commission on Appointments of certain appointments issued by
A. Republic Act 6975 is a valid law that duly requires the President contemplates a system of checks and balances
confirmation of the appointments of officers from the rank of between the executive and legislative branches of government.
senior superintendent and higher by the Commission on Experience showed that when almost all presidential
Appointments. appointments required the consent of the Commission on
Appointments, as was the case under the 1935 Constitution, the
commission became a venue of "horse-trading" and similar Philippines. The Constitution, no less, sets forth the distinction.
malpractices.6 On the other hand, placing absolute power to Under Section 4 of Article XVI of the 1987 Constitution,
make appointments in the President with hardly any check by The Armed Forces of the Philippines shall be composed of a
the legislature, as what happened under 1973 Constitution, citizen armed force which shall undergo military training and
leads to abuse of such power. Thus was perceived the need to service, as may be provided by law. It shall keep a regular force
establish a "middle ground" between the 1935 and 1973 necessary for the security of the State.
Constitutions. The framers of the 1987 Constitution deemed it On the other hand, Section 6 of the same Article of the
imperative to subject certain high positions in the government Constitution ordains that:
to the power of confirmation of the Commission on The State shall establish and maintain one police force, which
Appointments and to allow other positions within the exclusive shall be national in scope and civilian in character to be
appointing power of the President.1wphi1.nt administered and controlled by a national police commission.
Conformably, as consistently interpreted and ruled in the leading The authority of local executives over the police units in their
case of Sarmiento III vs. Mison 7, and in the subsequent cases jurisdiction shall be provided by law.
of Bautista vs. Salonga 8, Quintos-Deles vs. Constitutional To so distinguish the police force from the armed forces,
Commission9, and Calderon vs. Carale10; under Section 16, Congress enacted Republic Act 6975 which states in part:
Article VII, of the Constitution, there are four groups of officers Sec. 2. Declaration of policy. It is hereby declared to be the
of the government to be appointed by the President: policy of the State to promote peace and order, ensure public
First, the heads of the executive departments, ambassadors, safety and further strengthen local government capability aimed
other public ministers and consuls, officers of the armed forces towards the effective delivery of the basic services to the
from the rank of colonel or naval captain, and other officers citizenry through the establishment of a highly efficient and
whose appointments are vested in him in this Constitution; competent police force that is national in scope and civilian in
Second, all other officers of the Government whose character. . . .
appointments are not otherwise provided for by law; The policy force shall be organized, trained and equipped
Third, those whom the President may be authorized by law to primarily for the performance of police functions. Its national
appoint; scope and civilian character shall be paramount. No element of
Fourth, officers lower in rank whose appointments the Congress the police force shall be military nor shall any position thereof
may by law vest in the President alone. be occupied by active members of the Armed Forces of the
It is well-settled that only presidential appointments belonging Philippines.
to the first group require the confirmation by the Commission Thereunder, the police force is different from and independent
on Appointments. The appointments of respondent officers who of the armed forces and the ranks in the military are not similar
are not within the first category, need not be confirmed by the to those in the Philippine National Police. Thus, directors and
Commission on Appointments. As held in the case of Tarrosa vs. chief superintendents of the PNP, such as the herein respondent
Singson11 Congress cannot by law expand the power of police officers, do not fall under the first category of presidential
confirmation of the Commission on Appointments and require appointees requiring the confirmation by the Commission on
confirmation of appointments of other government officials not Appointments.
mentioned in the first sentence of Section 16 of Article VII of In view of the foregoing disquisition and conclusion, the
the 1987 Constitution. respondent former Secretary Salvador M. Enriquez III of the
Consequently, unconstitutional are Sections 26 and 31 of Department of Budget and Management, did not act with grave
Republic Act 6975 which empower the Commission on abuse of discretion in authorizing and effecting disbursements
Appointments to confirm the appointments of public officials for the salaries and other emoluments of the respondent police
whose appointments are not required by the Constitution to be officers whose appointments are valid.
confirmed. But the unconstitutionality of the aforesaid sections WHEREFORE, for lack of merit, the petition under consideration
notwithstanding, the rest of Republic Act 6975 stands. It is well- is hereby DISMISSED. No pronouncement as to
settled that when provisions of law declared void are severable costs.1wphi1.nt
from the main statute and the removal of the unconstitutional SO ORDERED.
provisions would not affect the validity and enforceability of the Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan,
other provisions, the statute remains valid without its voided Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-
sections.12 Reyes and Ynares Santiago, JJ., concur.
It is petitioner's submission that the Philippine National Police is
akin to the Armed Forces of the Philippines and therefore, the Republic of the Philippines
appointments of police officers whose rank is equal to that of SUPREME COURT
colonel or naval captain require confirmation by the Commission Manila
on Appointments. EN BANC
This contention is equally untenable. The Philippine National G. R. No. 175352 January 18, 2011
Police is separate and distinct from the Armed Forces of the DANTE V. LIBAN, REYNALDO M. BERNARDO and
SALVADOR M. VIARI, Petitioners,
vs. A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL
RICHARD J. GORDON, Respondent. REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED INTERVENOR
PHILIPPINE NATIONAL RED CROSS, Intervenor. PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS.
RESOLUTION 1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT
LEONARDO-DE CASTRO, J.: CONTROVERSY.
This resolves the Motion for Clarification and/or for 2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS
Reconsideration1 filed on August 10, 2009 by respondent AMENDED WAS NEVER AN ISSUE IN THIS CASE.
Richard J. Gordon (respondent) of the Decision promulgated by B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE
this Court on July 15, 2009 (the Decision), the Motion for Partial NO. 1264 AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL
Reconsideration2 filed on August 27, 2009 by movant-intervenor DECREE NO. 1264 WAS NOT A CREATION OF CONGRESS.
Philippine National Red Cross (PNRC), and the latters C. PNRCS STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS
Manifestation and Motion to Admit Attached Position Paper3 filed OWN. WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS
on December 23, 2009. AS AN AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY
In the Decision,4 the Court held that respondent did not forfeit SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL,
his seat in the Senate when he accepted the chairmanship of YET IT DOES NOT QUALIFY AS STRICTLY PRIVATE IN
the PNRC Board of Governors, as "the office of the PNRC CHARACTER.
Chairman is not a government office or an office in a In his Comment and Manifestation10 filed on November 9, 2009,
government-owned or controlled corporation for purposes of the respondent manifests: (1) that he agrees with the position taken
prohibition in Section 13, Article VI of the 1987 Constitution."5 by the PNRC in its Motion for Partial Reconsideration dated
The Decision, however, further declared void the PNRC Charter August 27, 2009; and (2) as of the writing of said Comment and
"insofar as it creates the PNRC as a private corporation" and Manifestation, there was pending before the Congress of the
consequently ruled that "the PNRC should incorporate under the Philippines a proposed bill entitled "An Act Recognizing the PNRC
Corporation Code and register with the Securities and Exchange as an Independent, Autonomous, Non-Governmental
Commission if it wants to be a private corporation."6 The Organization Auxiliary to the Authorities of the Republic of the
dispositive portion of the Decision reads as follows: Philippines in the Humanitarian Field, to be Known as The
WHEREFORE, we declare that the office of the Chairman of Philippine Red Cross."11
the Philippine National Red Cross is not a government office or After a thorough study of the arguments and points raised by
an office in a government-owned or controlled corporation for the respondent as well as those of movant-intervenor in their
purposes of the prohibition in Section 13, Article VI of the 1987 respective motions, we have reconsidered our pronouncements
Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, in our Decision dated July 15, 2009 with regard to the nature of
8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National the PNRC and the constitutionality of some provisions of the
Red Cross, or Republic Act No. 95, as amended by Presidential PNRC Charter, R.A. No. 95, as amended.
Decree Nos. 1264 and 1643, are VOID because they create the As correctly pointed out in respondents Motion, the issue of
PNRC as a private corporation or grant it corporate powers.7 constitutionality of R.A. No. 95 was not raised by the parties,
In his Motion for Clarification and/or for Reconsideration, and was not among the issues defined in the body of the
respondent raises the following grounds: (1) as the issue of Decision; thus, it was not the very lis mota of the case. We have
constitutionality of Republic Act (R.A.) No. 95 was not raised by reiterated the rule as to when the Court will consider the issue
the parties, the Court went beyond the case in deciding such of constitutionality in Alvarez v. PICOP Resources, Inc.,12 thus:
issue; and (2) as the Court decided that Petitioners did not have This Court will not touch the issue of unconstitutionality unless
standing to file the instant Petition, the pronouncement of the it is the very lis mota. It is a well-established rule that a court
Court on the validity of R.A. No. 95 should be considered obiter.8 should not pass upon a constitutional question and decide a law
Respondent argues that the validity of R.A. No. 95 was a non- to be unconstitutional or invalid, unless such question is raised
issue; therefore, it was unnecessary for the Court to decide on by the parties and that when it is raised, if the record also
that question. Respondent cites Laurel v. Garcia,9 wherein the presents some other ground upon which the court may [rest] its
Court said that it "will not pass upon a constitutional question judgment, that course will be adopted and the constitutional
although properly presented by the record if the case can be question will be left for consideration until such question will be
disposed of on some other ground" and goes on to claim that unavoidable.13
since this Court, in the Decision, disposed of the petition on Under the rule quoted above, therefore, this Court should not
some other ground, i.e., lack of standing of petitioners, there have declared void certain sections of R.A. No. 95, as amended
was no need for it to delve into the validity of R.A. No. 95, and by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC
the rest of the judgment should be deemed obiter. Charter. Instead, the Court should have exercised judicial
In its Motion for Partial Reconsideration, PNRC prays that the restraint on this matter, especially since there was some other
Court sustain the constitutionality of its Charter on the following ground upon which the Court could have based its judgment.
grounds: Furthermore, the PNRC, the entity most adversely affected by
this declaration of unconstitutionality, which was not even
originally a party to this case, was being compelled, as a
consequence of the Decision, to suddenly reorganize and with public interest. Pertinently R.A. No. 95, as amended by P.D.
incorporate under the Corporation Code, after more than sixty 1264, provides:
(60) years of existence in this country. WHEREAS, during the meeting in Geneva, Switzerland, on 22
Its existence as a chartered corporation remained unchallenged August 1894, the nations of the world unanimously agreed to
on ground of unconstitutionality notwithstanding that R.A. No. diminish within their power the evils inherent in war;
95 was enacted on March 22, 1947 during the effectivity of the WHEREAS, more than one hundred forty nations of the world
1935 Constitution, which provided for a proscription against the have ratified or adhered to the Geneva Conventions of August
creation of private corporations by special law, to wit: 12, 1949 for the Amelioration of the Condition of the Wounded
SEC. 7. The Congress shall not, except by general law, provide and Sick of Armed Forces in the Field and at Sea, The Prisoners
for the formation, organization, or regulation of private of War, and The Civilian Population in Time of War referred to
corporations, unless such corporations are owned and controlled in this Charter as the Geneva Conventions;
by the Government or any subdivision or instrumentality WHEREAS, the Republic of the Philippines became an
thereof. (Art. XIV, 1935 Constitution.) independent nation on July 4, 1946, and proclaimed on February
Similar provisions are found in Article XIV, Section 4 of the 1973 14, 1947 its adherence to the Geneva Conventions of 1929, and
Constitution and Article XII, Section 16 of the 1987 Constitution. by the action, indicated its desire to participate with the nations
The latter reads: of the world in mitigating the suffering caused by war and to
SECTION 16. The Congress shall not, except by general law, establish in the Philippines a voluntary organization for that
provide for the formation, organization, or regulation of private purpose as contemplated by the Geneva Conventions;
corporations. Government-owned or controlled corporations WHEREAS, there existed in the Philippines since 1917 a chapter
may be created or established by special charters in the interest of the American National Red Cross which was terminated in
of the common good and subject to the test of economic view of the independence of the Philippines; and
viability. WHEREAS, the volunteer organizations established in other
Since its enactment, the PNRC Charter was amended several countries which have ratified or adhered to the Geneva
times, particularly on June 11, 1953, August 16, 1971, Conventions assist in promoting the health and welfare of their
December 15, 1977, and October 1, 1979, by virtue of R.A. No. people in peace and in war, and through their mutual assistance
855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, and cooperation directly and through their international
respectively. The passage of several laws relating to the PNRCs organizations promote better understanding and sympathy
corporate existence notwithstanding the effectivity of the among the people of the world;
constitutional proscription on the creation of private NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
corporations by law, is a recognition that the PNRC is not strictly Philippines, by virtue of the powers vested in me by the
in the nature of a private corporation contemplated by the Constitution as Commander-in-Chief of all the Armed Forces of
aforesaid constitutional ban. the Philippines and pursuant to Proclamation No. 1081 dated
A closer look at the nature of the PNRC would show that there September 21, 1972, and General Order No. 1 dated September
is none like it not just in terms of structure, but also in terms of 22, 1972, do hereby decree and order that Republic Act No. 95,
history, public service and official status accorded to it by the Charter of the Philippine National Red Cross (PNRC) as amended
State and the international community. There is merit in PNRCs by Republic Acts No. 855 and 6373, be further amended as
contention that its structure is sui generis. follows:
The PNRC succeeded the chapter of the American Red Cross Section 1. There is hereby created in the Republic of the
which was in existence in the Philippines since 1917. It was Philippines a body corporate and politic to be the voluntary
created by an Act of Congress after the Republic of the organization officially designated to assist the Republic of the
Philippines became an independent nation on July 6, 1946 and Philippines in discharging the obligations set forth in the Geneva
proclaimed on February 14, 1947 its adherence to the Conventions and to perform such other duties as are inherent
Convention of Geneva of July 29, 1929 for the Amelioration of upon a national Red Cross Society. The national headquarters
the Condition of the Wounded and Sick of Armies in the Field of this Corporation shall be located in Metropolitan Manila.
(the "Geneva Red Cross Convention"). By that action the (Emphasis supplied.)
Philippines indicated its desire to participate with the nations of The significant public service rendered by the PNRC can be
the world in mitigating the suffering caused by war and to gleaned from Section 3 of its Charter, which provides:
establish in the Philippines a voluntary organization for that Section 3. That the purposes of this Corporation shall be as
purpose and like other volunteer organizations established in follows:
other countries which have ratified the Geneva Conventions, to (a) To provide volunteer aid to the sick and wounded of armed
promote the health and welfare of the people in peace and in forces in time of war, in accordance with the spirit of and under
war.14 the conditions prescribed by the Geneva Conventions to which
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and the Republic of the Philippines proclaimed its adherence;
6373, and further amended by P.D. Nos. 1264 and 1643, show (b) For the purposes mentioned in the preceding sub-section, to
the historical background and legal basis of the creation of the perform all duties devolving upon the Corporation as a result of
PNRC by legislative fiat, as a voluntary organization impressed
the adherence of the Republic of the Philippines to the said Statutes of the International Red Cross and Red Crescent
Convention; Movement (the Movement). They are also guided by the seven
(c) To act in matters of voluntary relief and in accordance with Fundamental Principles of the Red Cross and Red Crescent
the authorities of the armed forces as a medium of Movement: Humanity, Impartiality, Neutrality, Independence,
communication between people of the Republic of the Voluntary Service, Unity and Universality.
Philippines and their Armed Forces, in time of peace and in time A National Society partakes of a sui generis character. It is a
of war, and to act in such matters between similar national protected component of the Red Cross movement under Articles
societies of other governments and the Governments and 24 and 26 of the First Geneva Convention, especially in times of
people and the Armed Forces of the Republic of the Philippines; armed conflict. These provisions require that the staff of a
(d) To establish and maintain a system of national and National Society shall be respected and protected in all
international relief in time of peace and in time of war and apply circumstances. Such protection is not ordinarily afforded by an
the same in meeting and emergency needs caused by typhoons, international treaty to ordinary private entities or even non-
flood, fires, earthquakes, and other natural disasters and to governmental organisations (NGOs). This sui generis character
devise and carry on measures for minimizing the suffering is also emphasized by the Fourth Geneva Convention which
caused by such disasters; holds that an Occupying Power cannot require any change in
(e) To devise and promote such other services in time of peace the personnel or structure of a National Society. National
and in time of war as may be found desirable in improving the societies are therefore organizations that are directly
health, safety and welfare of the Filipino people; regulated by international humanitarian law, in contrast
(f) To devise such means as to make every citizen and/or to other ordinary private entities, including NGOs.
resident of the Philippines a member of the Red Cross. xxxx
The PNRC is one of the National Red Cross and Red Crescent In addition, National Societies are not only officially recognized
Societies, which, together with the International Committee of by their public authorities as voluntary aid societies, auxiliary to
the Red Cross (ICRC) and the IFRC and RCS, make up the the public authorities in the humanitarian field, but also benefit
International Red Cross and Red Crescent Movement (the from recognition at the International level. This is considered to
Movement). They constitute a worldwide humanitarian be an element distinguishing National Societies from other
movement, whose mission is: organisations (mainly NGOs) and other forms of humanitarian
[T]o prevent and alleviate human suffering wherever it may be response.
found, to protect life and health and ensure respect for the x x x. No other organisation belongs to a world-wide Movement
human being, in particular in times of armed conflict and other in which all Societies have equal status and share equal
emergencies, to work for the prevention of disease and for the responsibilities and duties in helping each other. This is
promotion of health and social welfare, to encourage voluntary considered to be the essence of the Fundamental Principle of
service and a constant readiness to give help by the members Universality.
of the Movement, and a universal sense of solidarity towards all Furthermore, the National Societies are considered to be
those in need of its protection and assistance.15 auxiliaries to the public authorities in the humanitarian field. x x
The PNRC works closely with the ICRC and has been involved in x.
humanitarian activities in the Philippines since 1982. Among The auxiliary status of [a] Red Cross Society means that it is
others, these activities in the country include: at one and the same time a private institution and a
1. Giving protection and assistance to civilians displaced or public service organization because the very nature of
otherwise affected by armed clashes between the government its work implies cooperation with the authorities, a link
and armed opposition groups, primarily in Mindanao; with the State. In carrying out their major functions, Red
2. Working to minimize the effects of armed hostilities and Cross Societies give their humanitarian support to official bodies,
violence on the population; in general having larger resources than the Societies, working
3. Visiting detainees; and towards comparable ends in a given sector.
4. Promoting awareness of international humanitarian law in the x x x No other organization has a duty to be its governments
public and private sectors.16 humanitarian partner while remaining independent.18(Emphases
National Societies such as the PNRC act as auxiliaries to the ours.)
public authorities of their own countries in the humanitarian field It is in recognition of this sui generis character of the PNRC that
and provide a range of services including disaster relief and R.A. No. 95 has remained valid and effective from the time of
health and social programmes. its enactment in March 22, 1947 under the 1935 Constitution
The International Federation of Red Cross (IFRC) and Red and during the effectivity of the 1973 Constitution and the 1987
Crescent Societies (RCS) Position Paper,17 submitted by the Constitution.
PNRC, is instructive with regard to the elements of the specific The PNRC Charter and its amendatory laws have not been
nature of the National Societies such as the PNRC, to wit: questioned or challenged on constitutional grounds, not even in
National Societies, such as the Philippine National Red Cross and this case before the Court now.
its sister Red Cross and Red Crescent Societies, have certain In the Decision, the Court, citing Feliciano v. Commission on
specificities deriving from the 1949 Geneva Convention and the Audit,19 explained that the purpose of the constitutional
provision prohibiting Congress from creating private they "are not inspired by the desire for financial gain but by
corporations was to prevent the granting of special privileges to individual commitment and devotion to a humanitarian purpose
certain individuals, families, or groups, which were denied to freely chosen or accepted as part of the service that National
other groups. Based on the above discussion, it can be seen that Societies through its volunteers and/or members render to the
the PNRC Charter does not come within the spirit of this Community."23
constitutional provision, as it does not grant special privileges to The PNRC, as a National Society of the International Red Cross
a particular individual, family, or group, but creates an entity and Red Crescent Movement, can neither "be classified as an
that strives to serve the common good. instrumentality of the State, so as not to lose its character of
Furthermore, a strict and mechanical interpretation of Article neutrality" as well as its independence, nor strictly as a private
XII, Section 16 of the 1987 Constitution will hinder the State in corporation since it is regulated by international humanitarian
adopting measures that will serve the public good or national law and is treated as an auxiliary of the State.24
interest. It should be noted that a special law, R.A. No. 9520, Based on the above, the sui generis status of the PNRC is now
the Philippine Cooperative Code of 2008, and not the general sufficiently established.1wphi1 Although it is neither a
corporation code, vests corporate power and capacities upon subdivision, agency, or instrumentality of the government, nor
cooperatives which are private corporations, in order to a government-owned or -controlled corporation or a subsidiary
implement the States avowed policy. thereof, as succinctly explained in the Decision of July 15, 2009,
In the Decision of July 15, 2009, the Court recognized the public so much so that respondent, under the Decision, was correctly
service rendered by the PNRC as the governments partner in allowed to hold his position as Chairman thereof concurrently
the observance of its international commitments, to wit: while he served as a Senator, such a conclusion does not ipso
The PNRC is a non-profit, donor-funded, voluntary, facto imply that the PNRC is a "private corporation" within the
humanitarian organization, whose mission is to bring timely, contemplation of the provision of the Constitution, that must be
effective, and compassionate humanitarian assistance for the organized under the Corporation Code. As correctly mentioned
most vulnerable without consideration of nationality, race, by Justice Roberto A. Abad, the sui generis character of PNRC
religion, gender, social status, or political affiliation. The PNRC requires us to approach controversies involving the PNRC on a
provides six major services: Blood Services, Disaster case-to-case basis.
Management, Safety Services, Community Health and Nursing, In sum, the PNRC enjoys a special status as an important ally
Social Services and Voluntary Service. and auxiliary of the government in the humanitarian field in
The Republic of the Philippines, adhering to the Geneva accordance with its commitments under international law. This
Conventions, established the PNRC as a voluntary organization Court cannot all of a sudden refuse to recognize its existence,
for the purpose contemplated in the Geneva Convention of 27 especially since the issue of the constitutionality of the PNRC
July 1929. x x x.20 (Citations omitted.) Charter was never raised by the parties. It bears emphasizing
So must this Court recognize too the countrys that the PNRC has responded to almost all national disasters
adherence to the Geneva Convention and respect the since 1947, and is widely known to provide a substantial portion
unique status of the PNRC in consonance with its treaty of the countrys blood requirements. Its humanitarian work is
obligations. The Geneva Convention has the force and effect unparalleled. The Court should not shake its existence to the
of law.21 Under the Constitution, the Philippines adopts the core in an untimely and drastic manner that would not only have
generally accepted principles of international law as part of the negative consequences to those who depend on it in times of
law of the land.22 This constitutional provision must be disaster and armed hostilities but also have adverse effects on
reconciled and harmonized with Article XII, Section 16 of the the image of the Philippines in the international community. The
Constitution, instead of using the latter to negate the former. sections of the PNRC Charter that were declared void must
By requiring the PNRC to organize under the Corporation Code therefore stay.
just like any other private corporation, the Decision of July 15, WHEREFORE, premises considered, respondent Richard J.
2009 lost sight of the PNRCs special status under international Gordons Motion for Clarification and/or for Reconsideration and
humanitarian law and as an auxiliary of the State, designated to movant-intervenor PNRCs Motion for Partial Reconsideration of
assist it in discharging its obligations under the Geneva the Decision in G.R. No. 175352 dated July 15, 2009 are
Conventions. Although the PNRC is called to be independent GRANTED. The constitutionality of R.A. No. 95, as amended, the
under its Fundamental Principles, it interprets such charter of the Philippine National Red Cross, was not raised by
independence as inclusive of its duty to be the governments the parties as an issue and should not have been passed upon
humanitarian partner. To be recognized in the International by this Court. The structure of the PNRC is sui generis being
Committee, the PNRC must have an autonomous status, and neither strictly private nor public in nature. R.A. No. 95 remains
carry out its humanitarian mission in a neutral and impartial valid and constitutional in its entirety. The dispositive portion of
manner. the Decision should therefore be MODIFIED by deleting the
However, in accordance with the Fundamental Principle of second sentence, to now read as follows:
Voluntary Service of National Societies of the Movement, the WHEREFORE, we declare that the office of the Chairman of
PNRC must be distinguished from private and profit-making the Philippine National Red Cross is not a government office or
entities. It is the main characteristic of National Societies that an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the 1987 4 Liban v. Gordon, G.R. No. 175352, July 15, 2009, 593 SCRA
Constitution. 68.
SO ORDERED. 5 Section 13, Article VI of the Constitution reads:

TERESITA J. LEONARDO-DE CASTRO SEC. 13. No Senator or Member of the House of Representatives
Associate Justice may hold any other office or employment in the Government, or
WE CONCUR: any subdivision, agency, or instrumentality thereof, including
No part government-owned or controlled corporations or their
RENATO C. CORONA subsidiaries, during his term without forfeiting his seat. Neither
Chief Justice shall he be appointed to any office which may have been created
See dissenting opinion I join the dissent of J. or the emoluments thereof increased during the term for which
ANTONIO T. CARPIO CarpioCONCHITA he was elected.
6 Liban v. Gordon, supra note 4 at 97-98.
Associate Justice CARPIO MORALES
7 Id. at 98.
Associate Justice
8 Rollo, p. 256.

9 G.R. Nos. 92013 and 92047, July 25, 1990, 187 SCRA 797,

PRESBITERO J. ANTONIO EDUARDO 813.


VELASCO, JR. B. NACHURA 10 Rollo, pp. 421-431.

Associate Justice Associate Justice 11 Id. at 421.

12 G.R. No. 162243, November 29, 2006, 508 SCRA 498.

13
Id. at 552, citing Sotto v. Commission on Elections, 76 Phil.
I join the dissent of J. DIOSDADO M.
516, 522 (1946).
Carpio PERALTA 14 Whereas clause, Republic Act No. 95 (1947).
ARTURO D. BRION Associate Justice 15 Pamphlet entitled "The Fundamental Principles of the Red
Associate Justice
Cross and Red Crescent Movement" (April 2009), available with
the ICRC, http://www.icrc.org.
16 Id.
LUCAS P. BERSAMIN MARIANO C. DEL
17 Rollo, pp. 440-442.
Associate Justice CASTILLO
18 Id. at 440-441.
Associate Justice
19 464 Phil. 439 (2004).

20 Liban v. Gordon, supra note 4 at 77.

See my concurring MARTIN S. 21 Ebro III v. National Labor Relations Commission, 330 Phil. 93,

opinion VILLARAMA, JR. 101 (1996).


ROBERTO A. ABAD Associate Justice 22 1935 Constitution, ARTICLE II, SECTION 3. The

Associate Justice Philippines renounces war as an instrument of national policy


and adopts the generally accepted principles of international law
as part of the law of the Nation.
I join J. Carpio in his JOSE C. MENDOZA
1973 CONSTITUTION, ARTICLE II, SECTION 3. The
dissent Associate Justice
Philippines renounces war as an instrument of national policy,
JOSE PORTUGAL
adopts the generally accepted principles of international law as
PEREZ
part of the law of the land, and adheres to the policy of peace,
Associate Justice
equality, justice, freedom, cooperation, and amity with all
nations.
I agree with the dissent of J. Carpio
1987 CONSTITUTION, ARTICLE II, SECTION 2. The
MARIA LOURDES P. A. SERENO
Philippines renounces war as an instrument of national policy,
Associate Justice
adopts the generally accepted principles of international law as
CERTIFICATION
part of the law of the land and adheres to the policy of peace,
Pursuant to Section 13, Article VIII of the Constitution, I certify
equality, justice, freedom, cooperation, and amity with all
that the conclusions in the above Resolution had been reached
nations.
in consultation before the case was assigned to the writer of the 23 Supra note 15.
opinion of the Court. 24 Rollo, p. 433.
RENATO C. CORONA
Chief Justice
The Lawphil Project - Arellano Law Foundation

Footnotes
1 Rollo, pp. 256-264.

2 Id. at 397-418. DISSENTING OPINION


3 Id. at 434-439. CARPIO, J.:
I vote to deny the motions for reconsideration filed by Motion for Clarification and Reconsideration that the Court
Respondent Richard J. Gordon (respondent Gordon) and should not have passed upon the constitutionality of RA 95 since
movant-intervenor Philippine National Red Cross (PNRC). such issue was not raised by the parties.
Respondent Gordon and the PNRC seek partial reconsideration Generally, the Court will not pass upon a constitutional question
of the Courts Decision dated 15 July 2009, declaring that unless such question is raised by the parties.3However, as
Republic Act No. 95 (RA 95), insofar as it creates the PNRC as a explained by the Court in Fabian v. Hon. Desierto,4 the rule that
private corporation and grants it corporate powers, is void for a challenge on constitutional grounds must be raised by a party
being unconstitutional. The Decision also declared that the to the case is not an inflexible rule. In the Fabian case, the issue
Office of the Chairman of the PNRC is not a government office of the constitutionality of Section 27 of Republic Act No. 67705
or an office in a government-owned or controlled corporation (RA 6770) was not presented as an issue by the parties.
for purposes of the prohibition in Section 13, Article VI of the Nevertheless, the Court ruled that Section 27 of RA 6770, which
1987 Constitution, which reads: provides for appeals in administrative disciplinary cases from the
SEC. 13. No Senator or Member of the House of Representatives Office of the Ombudsman to the Supreme Court, infringes on
may hold any other office or employment in the Government, or the constitutional proscription against laws increasing the
any subdivision, agency, or instrumentality thereof, including appellate jurisdiction of the Supreme Court without its advice
government-owned or controlled corporations or their and consent.
subsidiaries, during his term without forfeiting his seat. Neither In this case, the constitutional issue was inevitably thrust upon
shall he be appointed to any office which may have been created the Court upon its finding that the PNRC is a private corporation,
or the emoluments thereof increased during the term for which whose creation by a special charter is proscribed by the
he was elected. Constitution. In view of the Courts finding that the PNRC is a
Respondent Gordon and the PNRC are seeking reconsideration private corporation, it was imperative for the Court to address
of the portion of the Decision relating to the unconstitutionality the issue of the creation of the PNRC through a special charter.
of certain provisions of RA 95. The Constitution prohibits the creation of a private corporation
This case originated from a petition filed by petitioners, seeking through a special law. The Court could not declare the PNRC a
to declare respondent Gordon as having forfeited his seat in the private corporation created by the special law RA 95 without
Senate when he accepted the chairmanship of the PNRC Board running afoul of Section 16, Article XII of the 1987 Constitution.
of Governors. To declare the PNRC a private corporation necessarily meant
In the assailed Decision, this Court held that the PNRC is a declaring RA 95 unconstitutional. To declare the PNRC, a
private organization performing public functions. The Philippine creation of RA 95, a private corporation without declaring RA 95
government does not own or control the PNRC and neither the unconstitutional would mean that Congress can create a private
President nor the head of any department, agency, commission corporation through a special law. This the Court could not do.
or board appoints the PNRC Chairman. Thus, the prohibition in The fact that the constitutionality of RA 95 has not been
Section 13, Article VI of the 1987 Constitution is not applicable questioned for more than sixty (60) years does not mean that it
to the office of the PNRC Chairman, which is not a government could no longer be declared unconstitutional. One is not
office or an office in a government-owned or controlled estopped from assailing the validity of a law just because such
corporation. law has been relied upon in the past and all that time has not
Since the PNRC is a private corporation, the creation of the PNRC been attacked as unconstitutional.6Indeed, there is no
through a special charter is violative of the constitutional prescription to declare a law unconstitutional. Thus, in the case
proscription against the creation of private corporations by of Moldex Realty, Inc. v. Housing and Land Use Regulatory
special law. The creation of the PNRC by special charter on 22 Board,7 this Court held that constitutional challenge can be
March 1947 through RA 95 contravenes Section 7, Article XIV of made anytime:
the 1935 Constitution, as amended, which reads: That the question of constitutionality has not been
SEC. 7. The Congress shall not, except by general law, provide raised before is not a valid reason for refusing to allow
for the formation, organization, or regulation of private it to be raised later. A contrary rule would mean that a law,
corporations, unless such corporations are owned or controlled otherwise unconstitutional, would lapse into constitutionality by
by the Government or any subdivision or instrumentality the mere failure of the proper party to promptly file a case to
thereof. challenge the same. (Emphasis supplied)
This provision prohibiting Congress from creating private More importantly, the Court granted the PNRCs motion
corporations, except by general law, is reiterated in the 19731 to intervene and the PNRC then filed its Motion for
and 19872 Constitutions. Partial Reconsideration, in which the PNRC argued that
In its Motion for Partial Reconsideration, the PNRC maintains its charter is valid and constitutional. Thus, the PNRC,
that the decision declaring unconstitutional certain provisions of the entity that is directly affected by the issue of the
RA 95 deprived the PNRC of its right to due process considering constitutionality of RA 95, is in law and in fact a party to
that the PNRC was not a party to the case. Furthermore, the this case, raising specifically the issue that its charter is
PNRC states that the constitutionality of RA 95 was never an valid and constitutional. Moreover, although the original
issue in the case. Similarly, respondent Gordon posits in his parties did not raise as an issue the constitutionality of RA 95,
they were still afforded the opportunity to be heard on this In Demetria v. Alba,12 the Court declared void Paragraph 1 of
constitutional issue when they filed their respective motions for Section 44 of PD 1177 for being unconstitutional since it
reconsideration. empowers the President to indiscriminately transfer funds and
In its Motion for Partial Reconsideration, the PNRC claims that unduly extends the privilege granted under Section 16(5),
the constitutional proscription against the creation of private Article VIII of the 1973 Constitution. In Export Processing Zone
corporations by special law is not applicable in this case since Authority v. Judge Dulay,13 the Court held that PD 1533 is
the PNRC was not created by Congress but by then President unconstitutional because it deprives the courts of their function
Ferdinand Marcos, who issued Presidential Decree No. 12648 of determining just compensation in eminent domain cases and
(PD 1264) which repealed RA 95. The PNRC insists that PD 1264 eliminates the courts discretion to appoint commissioners
repealed and superseded RA 95. The PNRC maintains that since pursuant to Rule 67 of the Rules of Court. In subsequent cases,
PD 1264 was issued by President Marcos in the exercise of his similar provisions on just compensation found in expropriation
legislative power during the martial law period pursuant to laws such as PD 42, 76, 464, 794, 1224, 1259, 1313, and 1517
Proclamation 1081, then the constitutional prohibition does not were also declared void and unconstitutional for the same
apply. Respondent Gordon agrees with the position taken by the reason and for being violative of due process.14 In Tuason v.
PNRC. Register of Deeds, Caloocan City,15 PD 293 was declared void
I disagree. Even if the PNRC derived its existence from PD 1264, and unconstitutional since it allows the President to exercise
still the constitutional prohibition will apply. President Marcos judicial function and to take property without due process and
issued PD 1264 on 5 December 1977 during martial law period without compensation. In Manotok v. National Housing
when the President assumed extensive legislative power. Such Authority,16 the Court held that PD 1669 and 1670, which
assumption of legislative power did not place President Marcos expropriated certain properties, were void and unconstitutional
above the Constitution. President Marcos could not issue for violating due process of law.
decrees or orders contrary to the provisions of the Constitution. In this case, PD 1264 contravenes Section 4, Article XIV of the
The exercise of legislative power by President Marcos under 1973 Constitution which provides that " the National Assembly
martial law must still be in accordance with the Constitution shall not, except by general law, provide for the formation,
because legislative power cannot be exercised in violation of the organization, or regulation of private corporations, unless such
Constitution from which legislative power draws its existence. corporations are owned or controlled by the government or any
The limits on legislative power is explained by the Court in subdivision or instrumentality thereof." This same prohibition is
Government v. Springer,9 thus: found in Section 16, Article XII of the present Constitution. Thus,
Someone has said that the powers of the legislative department just like RA 95, PD 1264 is also void insofar as it creates the
of the Government, like the boundaries of the ocean, are PNRC as a private corporation.
unlimited. In constitutional governments, however, as The PNRC further submits that "due to its peculiar nature, it
well as governments acting under delegated authority, should be considered as a private, neutral and separate entity
the powers of each of the departments of the same are independent of government control and supervision, but acting
limited and confined within the four wall of the as an auxiliary to government when performing humanitarian
constitution or the charter, and each department can functions, and specially created pursuant to the treaty
only exercise such powers as are expressly given and obligations of the Philippines to the Geneva Conventions."17
such other powers as are necessarily implied from the Thus, the PNRC maintains that its structure is sui generis and
given powers. The constitution is the shore of legislative that it is not strictly private in character since it performs certain
authority against which the waves of legislative governmental functions. The PNRC posits that its argument is
enactment may dash, but over which it cannot leap. reinforced by the Position Paper18 dated 7 December 2009 of
(Emphasis supplied) the International Federation of Red Cross and Red Crescent
The 1973 Constitution, as amended, was in force when Societies ("International Federation"), which reads in part:
President Marcos issued PD 1264. Under Section 1, Article VIII A National Society PARTAKES OF A SUI GENERIS CHARACTER.
of the 1973 Constitution, legislative power is vested in the It is a protected component of the Red Cross Movement under
National Assembly. By virtue of Amendment No. 610of the 1973 Articles 24 and 26 of the First Geneva Convention, especially in
Constitution, the President was granted legislative power. Thus, times of armed conflict. These provisions require that the staff
under Amendment No. 6, President Marcos was granted of a National Society shall be respected and protected in all
concurrent legislative authority with the interim Batasang circumstances. Such protection is not ordinarily afforded by an
Pambansa.11 Considering that the legislative power of the international treaty to ordinary private entities or even non-
interim Batasang Pambansa and the regular National Assembly governmental organizations (NGOs). This sui generis character
is subject to the limitations imposed by the Constitution, then is also emphasized by the Fourth Geneva Convention which
more so for the emergency legislative power granted to the holds that an Occupying Property cannot require any change in
President during the period of martial law. In fact, the Court has the personnel or structure of a National Society. National
declared void several Presidential Decrees or provisions thereof Societies are therefore organizations that are directly regulated
for being unconstitutional. by international humanitarian law, in contrast to other ordinary
private entities, including NGOs.
xxx exempt it from the constitutional prohibition against the creation
Once recognized by its Government as an independent National of a private corporation through a special law since the PNRC is,
Society auxiliary to the public authorities in humanitarian field, admittedly, still a private organization. The express prohibition
a National Society, if it fulfills the ten (10) conditions for against the creation of private corporations by special charter
recognition, can be recognized by the International Committee under Section 16, Article XII of the 1987 Constitution cannot be
of the Red Cross and be admitted as member of the disregarded just because a private corporation claims to be sui
International Federation of the Red Cross and Red Crescent generis. The constitutional prohibition admits of no exception.
Societies. No other organization belongs to a world-wide Even the International Federation specifies the nature of the
Movement in which all Societies have equal status and share National Red Cross Society as a "private institution and a
equal responsibilities and duties in helping each other. This is public service organization." Furthermore, it emphasizes
considered to be the essence of the Fundamental Principle of the importance of maintaining and protecting the
Universality. independence of the National Society, free from any
Furthermore, the National Societies are considered to be form of intervention from the governmentparticularly
auxiliaries to the public authorities in the humanitarian field. The concerning its governance and management structure.
concept of National Societies auxiliary to the public authorities Full independence means that the National Societies are
was reaffirmed in Resolution 3 of the 30thInternational prohibited from being owned or controlled by their host
Conference of the Red Cross and Red Crescent, on 26-30 government or from becoming government instrumentalities as
November 2007. This status, as you may see, is not only a this would undermine their independence, neutrality, and
positive and distinct feature of any organization, but it is a autonomy.
precondition of its existence and functioning as a member of the Indeed, the PNRC, as a member National Society of the
International Red Cross and Red Crescent Movement. International Red Cross and Red Crescent Movement
The auxiliary status of Red Cross Society means that it (Movement) must meet the stringent requirement of
is at one and the same time a private institution and a independence, autonomy, and neutrality in order to be
public service organization because the very nature of recognized as a National Society by the International Committee
its work implies cooperation with the authorities, a link of the Red Cross (ICRC). The conditions for recognition of
with the State. In carrying out their major functions, Red National Societies are enumerated in Article 4 of the Statutes of
Cross Societies give their humanitarian support to official bodies, the Movement, thus:
in general having larger resources than the Societies, working Article 4
towards comparable ends in a given sector. Conditions for Recognition of National Societies
This is also the essence of the Fundamental Principle of In order to be recognized in terms of Article 5,
Independence. No other humanitarian organization gives such paragraph 2 b)20 as a National Society, the Society shall
interpretation to its independence, although many claim that meet the following conditions:
they are independent. No other organization has a duty to 1. Be constituted on the territory of an independent State where
be its governments humanitarian partner while the Geneva Convention for the Amelioration of the Condition of
remaining independent. the Wounded and Sick in Armed Forces in the Field is in force.
The Movement places much importance on the Principle 2. Be the only National Red Cross or Red Crescent Society of the
of Independence and the duty of the States Parties to said State and be directed by a central body which shall alone
the Geneva Conventions to respect the adherence by all be competent to represent it in its dealings with other
the components of the Movement to the Fundamental components of the Movement.
Principles. Before it can be recognized by the 3. Be duly recognized by the legal government of its
International Committee, a National Society must have country on the basis of the Geneva Conventions and of
autonomous status which allows it to operate in the national legislation as a voluntary aid society,
conformity with the Fundamental Principles of the auxiliary to the public authorities in the humanitarian
Movement. field.
Thus, in protecting the independence of the National 4. Have an autonomous status which allows it to operate
Society in carrying out its humanitarian mission in a in conformity with the Fundamental Principles of the
neutral and impartial manner, it is crucial that it must be Movement.
free from any form of intervention from the government 5. Use a name and distinctive emblem in conformity with
at the level of the internal organization of the National the Geneva Conventions and their Additional Protocols.
Society mainly its governance and management 6. Be so organized as to be able to fulfil the tasks defined
structure. (Boldfacing supplied. Underscoring in the original.) in its own statutes, including the preparation in peace time
All private charitable organizations are doing public service or for its statutory tasks in case of armed conflict.
activities that also constitute governmental functions.19 Hence, 7. Extend its activities to the entire territory of the State.
the PNRC cannot claim that it is sui generis just because it is a 8. Recruit its voluntary members and its staff without
private organization performing certain public or governmental consideration of race, sex, class, religion or political opinions.
functions. That the PNRC is rendering public service does not
9. Adhere to the present Statutes, share in the fellowship which that the unincorporated PNRC is the local National
unites the components of the Movement and cooperate with Society of the International Red Cross and Red Crescent
them. Movement, and thus entitled to the benefits,
10. Respect the Fundamental Principles of the Movement and exemptions and privileges set forth in the PNRC Charter.
be guided in its work by the principles of international The other provisions of the PNRC Charter implement the
humanitarian law.21 Philippine Governments treaty obligations under Article 4(5) of
The conditions for recognition of National Societies do the Statutes of the International Red Cross and Red Crescent
not require that the State itself create the National Movement, which provides that to be recognized as a National
Society through a special charter. The absence of such Society, the Society must be "duly recognized by the legal
requirement is proper and necessary considering the government of its country on the basis of the Geneva
Movements emphasis on the importance of maintaining the Conventions and of the national legislation as a voluntary aid
independence of the National Society, free from any form of society, auxiliary to the public authorities in the humanitarian
intervention from the government. However, it is required that field."26 (Emphasis supplied)
the National Society be officially recognized by the government This Courts paramount duty is to faithfully apply the provisions
of its country as auxiliary to the public authorities in the of the Constitution to the present case. The Constitutional
humanitarian field. prohibition under Section 16, Article XII of the 1987 Constitution
A decree granting official recognition to the National Society is is clear, categorical, and absolute:
essential in order to distinguish it from other charitable SEC. 16. The Congress, shall not, except by general law,
organizations in the country and to be entitled to the protection provide for the formation, organization, or regulation of private
of the Geneva Conventions in the event of armed conflict.22 The corporations. Government-owned or controlled corporations
content of the decree of recognition may vary from one country may be created or established by special charters in the interest
to another but it should explicitly specify: of the common good and subject to the test of economic
1. That the National Society is the countrys only Red Cross or viability. (Emphasis supplied)
Red Crescent organization; Since the constitutional prohibition admits of no exception, this
2. That it is autonomous in relation to the State; Court has no recourse but to apply the prohibition to the present
3. That it performs its activities in conformity with the case. This Court has no power to make PNRC an exception to
Fundamental Principles; and Section 16, Article XII of the 1987 Constitution.
4. The conditions governing the use of the emblem.23 The PNRC could either choose to remain unincorporated or it
Thus, there is no specific requirement for the creation of could adopt its own articles of incorporation and by-laws and
the National Society through a special charter. The State incorporate under the Corporation Code and register with the
does not have the obligation to create the National Society, in Securities and Exchange Commission if it wants to be a private
our case, the PNRC. What is important is that the National corporation.
Society is officially recognized by the government as auxiliary to Accordingly, I vote to DENY the Motions for Reconsideration.
the public authorities in the humanitarian services of the ANTONIO T. CARPIO
government. This the Philippine government can accomplish Associate Justice
even without creating the PNRC through a special charter.
Besides, as auxiliaries in the humanitarian services of their host Footnotes
governments, the National Societies are subject to the 1 Section 4, Article XIV of the 1973 Constitution reads:

laws of their respective countries.24 Thus, the National SEC. 4. The National Assembly shall not, except by general law,
Societies are bound by the laws of their host countries and must provide for the formation, organization, or regulation of private
submit to the Constitution of their respective host countries. corporations, unless such corporations are owned or controlled
The Philippine Constitution prohibits Congress from creating by the Government or any subdivision or instrumentality
private corporations except by general law. I agree with the thereof.
2
PNRC that it is a private organization performing public Section 16, Article XII of the 1987 Constitution reads:
functions. Precisely because it is a private organization, the SEC. 16. The Congress, shall not, except by general law, provide
PNRC charter whether it be RA 95 or PD 1264 is violative of for the formation, organization, or regulation of private
the constitutional proscription against the creation of private corporations. Government-owned or controlled corporations
corporations by special law. Nevertheless, keeping in mind the may be created or established by special charters in the interest
treaty obligations of the Philippines under the Geneva of the common good and subject to the test of economic
Conventions, the assailed Decision only held void those viability.
provisions of the PNRC charter which create PNRC as a private 3 Moldex Realty, Inc. v. Housing and Land Use Regulatory Board,

corporation or grant it corporate powers. The other provisions G.R. No. 149719, 21 June 2007, 525 SCRA 198.
respecting the governments treaty obligations remain valid, 4 356 Phil. 787 (1998).

thus: 5 Ombudsman Act of 1989.

The other provisions25 of the PNRC Charter remain valid 6 British American Tobacco v. Camacho, G.R. No. 163583, 20

as they can be considered as a recognition by the State August 2008, 562 SCRA 511.
7 G.R. No. 149719, 21 June 2007, 525 SCRA 198, 204. Article 4, and to notify other National Societies of such
8 AMENDING REPUBLIC ACT NO. 95 (As amended by Republic recognition.
Acts No. 855 and 6373). AN ACT TO INCORPORATE THE 21 Statutes and Rules of Procedure of the International Red

PHILIPPINE NATIONAL RED CROSS. Cross and Red Crescent Movement, ICRC Publication, p. 9.
9 50 Phil. 259, 309 (1927). 22 The Fundamental Principles of the Red Cross and Red

10 Amendment No. 6 reads: Crescent, ICRC Publication, p. 18.


Whenever in the judgment of the President (Prime Minister), 23 The Fundamental Principles of the Red Cross and Red

there exists a grave emergency or a threat or imminence Crescent, ICRC Publication, pp. 18-19.
thereof, or whenever the interim Batasang Pambansa or the 24 Discover the ICRC, ICRC Publication, p. 10.

regular National Assembly fails or is unable to act adequately on 25 The valid provisions are Sections 4(b) and (c), 14, 15, 16, and

any matter for any reason that in his judgment requires 17:
immediate action, he may, in order to meet the exigency, issue SEC. 4. In furtherance of the purposes mentioned in the
the necessary decrees, orders or letters of instruction, which preceding sub-paragraphs, the Philippine National Red Cross
shall form part of the law of the land. shall:
11 Legaspi v. Minister of Finance, No. L-58289, 24 July 1982, 115 xxx
SCRA 418. b. Be exempt from payment of all duties, taxes, fees, and other
12 232 Phil. 222 (1987). charges of all kinds on all importations and purchases for its
13 233 Phil. 313 (1987). exclusive use, on donations for its disaster relief work and other
14 Municipality of Talisay v. Ramirez, G.R. No. 77071, 22 March Red Cross services, and in its benefits and fund raising drives all
1990, 183 SCRA 528; Belen v. Court of Appeals, 243 Phil. 443 provisions of law to the contrary notwithstanding.
(1988); Leyva v. Intermediate Appellate Court, 239 Phil.47 c. Be allotted by the Philippine Charity Sweepstakes Office one
(1987); Sumulong v. Hon. Guerrero, 238 Phil. 462 (1987); lottery draw yearly for the support of its disaster relief
Ignacio v. Judge Guerrero, 234 Phil. 364 (1987). operations in addition to its existing lottery draws for the Blood
15 241 Phil. 650 (1988). Program.
16 Nos. L-55166 and L-55167, 21 MAY 1987, 150 SCRA 89. SEC. 14. It shall be unlawful for any person to solicit, collect or
17 PNRCs Motion for Partial Reconsideration, p. 17; rollo, p. 413. receive money, materials, or property of any kind by falsely
(Boldfacing supplied) representing or pretending himself to be a member, agent or
18 Annex "A." The Position Paper was written by Razia Essack- representative of the Philippine National Red Cross.
Kauaria, Director of Governance Support and Global Monitoring, SEC. 15. The use of the name Red Cross is reserved exclusively
International Federation of Red Cross and Red Crescent to the Philippine National Red Cross and the use of the emblem
Societies. of the red Greek cross on a white ground is reserved exclusively
19 The following are some of the private charitable organizations to the Philippine National Red Cross, medical services of the
in the Philippines: (1) CHILDHOPE Asia Philippines, Inc. - is Armed Forces of the Philippines and such other medical facilities
registered in 1995 under the Securities and Exchange or other institutions as may be authorized by the Philippine
Commission and whose principal purpose is to advocate for the National Red Cross as provided under Article 44 of the Geneva
cause of street children [CHILDHOPE Asia Website, Conventions. It shall be unlawful for any other person or entity
http://www.childhope.org.ph/about-us.html (visited 2 to use the words Red Cross or Geneva Cross or to use the
September 2010)]; (2) PATH Foundation Philippines, Inc. (PFPI) emblem of the red Greek cross on a white ground or any
- is a private, charitable organization whose mission is to designation, sign, or insignia constituting an imitation thereof
improve health and contribute to environmentally sustainable for any purpose whatsoever.
development, particularly in under-served areas of the SEC. 16. As used in this Decree, the term person shall include
Philippines. [PFPI Website, http://www.pfpi.org/about.html any legal person, group, or legal entity whatsoever nature, and
(visited 2 September 2010)]; (3) The Philippine Community any person violating any section of this Article shall, upon
Fund - is a registered charitable organization, whose mission is conviction therefore be liable to a fin[e] of not less than one
to permanently improve the quality of life for the poorest Filipino thousand pesos or imprisonment for a term not exceeding one
communities, through education, nutrition, health, medical and year, or both, at the discretion of the court, for each and every
family enhancement programs, regardless of religion, race or offense. In case the violation is committed by a corporation or
political boundaries [The Philippine Community Fund Website, association, the penalty shall devolve upon the president,
http://p-c-f.org/about_us/index.php (visited 2 September director or any other officer responsible for such violation.
2010)]. SEC. 17. All acts or parts of acts which are inconsistent with the
20 Article 5, paragraph 2 b) states: provisions of this Decree are hereby repealed.
2. The role of the International Committee, in accordance with 26 Decision dated 15 July 2009, pp. 22-23.

its Statutes, is in particular:


xxx The Lawphil Project - Arellano Law Foundation
b) to recognize any newly established or reconstituted National
Society, which fulfils the conditions for recognition set out in
CONCURRING OPINION Moreover, the PNRC cannot be government-owned because it
ABAD, J.: does not receive appropriations from Congress or possess
On July 15, 2009 the Court rendered a decision partially voiding government assets. It is funded by voluntary donations from
Republic Act 95 (R.A. 95), the charter of the Philippine National private contributors. The government does not have control
Red Cross (PNRC) as amended by Presidential Decrees 1264 and over its affairs. While the President of the Philippines appoints
1643 (P.D. 1264 and 1643). The Court ruled that Congress six of the PNRC Board of Governors, the overwhelming majority
enacted the PNRC Charter in violation of Section 7, Article XIV of the thirty-member board is elected by private sector
of the 1935 Constitution, which states: members. The PNRC Chairman is not appointed by or under the
SEC. 7. The Congress shall not, except by general law, provide control of the President of the Philippines. He is elected by the
for the formation, organization, or regulation of private organizations governing board. These all prove that the position
corporations, unless such corporations are owned or controlled of PNRC Chairman is a private, not a government office.
by the Government or any subdivision or instrumentality Additionally, the Court held that the Camporedondo ruling relied
thereof. on by Liban, et al was erroneous. The Courts conclusion in that
The Court based its decision on a finding that the PNRC is a casethat the PNRC is a GOCCis based solely on the fact that
private corporation which Congress could not create by special it was Congress which created PNRC under a special law. The
law. Like any other private corporation, the PNRC can only be case failed to consider, however, that the 1987 Administrative
formed and organized under a general enabling law like the Code defines a GOCC as "any agency organized as a stock or
Corporation Code. non-stock corporation, vested with functions relating to public
The decision stemmed from a petition that petitioners Dante needs x x x, and owned by the Government directly or through
Liban, et al (Liban, et al) filed with the Court to declare its instrumentalities x x x."6 Since the government did not own
respondent Senator Richard J. Gordon (Sen. Gordon) as having PNRC, it cannot be a GOCC under such definition.
forfeited his Senate seat under Section 13, Article VI of the 1987 The Court thus concluded that Sen. Gordon did not forfeit his
Constitution.1 Sen. Gordon had been elected Chairman of the Senate seat.
Board of Governors of the PNRC, which the Court classified in As stated earlier, the Court partially voided the PNRC Charter on
Camporedondo v. NLRC2 as a government-owned and controlled the ground that Congress has been constitutionally prohibited
corporation (GOCC). Consequently, he automatically forfeited from creating private corporations by special law. The Court
his Senate seat for holding an incompatible office in a GOCC. declared as void those provisions of the PNRC Charter that
Parenthetically, in resolving the case, the Court held that Liban, related to its creation and those that granted it corporate
et al had no standing to file the petition, as it is a quo warranto powers.7 What remained of the Charter, said the Court,8 served
case that could only be brought by the Government or an "as recognition by the State that the unincorporated PNRC is the
individual who claims entitlement to the public office. Since local National Society of the International Red Cross and Red
Liban, et al did not seek the Senators seat, they were not proper Crescent Movement." The surviving provisions supposedly
parties to bring the action. implemented the Philippine Governments treaty obligations
Despite Liban, et als lack of standing, however, the Court chose under Article 4(5) of the Statutes of the Movement which
to address the merits of their petition. The main issue was: required a National Society to be "duly recognized by the legal
"whether the office of the PNRC Chairman is a government office government of its country on the basis of the Geneva
or an office in a government-owned or controlled corporation Conventions and of the national legislation."9
for purposes of the prohibition in Section 13, Article VI of the Justice Antonio Eduardo B. Nachura dissented and was joined
Constitution."3 by four other members of the Court.10 First, he argued that
According to the Court, the PNRC is a private organization Liban, et al had standing to file the petition, which he
performing public functions. Congress established it in characterized as one for prohibition and not quo warranto. The
adherence to the Geneva Conventions for the purpose petition actually sought an injunction against a continuing
contemplated under the treaties. The PNRC is a member violation of the Constitution and involved a constitutional issue
National Society of the International Red Cross and Red with great impact on public interest. Thus, the petition deserved
Crescent Movement and is guided and bound by its seven the attention of the Court in view of its seriousness, novelty, and
Fundamental Principles.4 To be recognized as a National Society, weight as precedent.
the Statutes of the International Red Cross and Red Crescent According to Justice Nachura, since no private corporation can
Movement required that the PNRC be autonomous or have a special charter under the Constitution, it follows that the
independent. PNRC is a GOCC. As held in Camporedondo and Baluyot v.
Due to this requirement, the PNRC must not appear to be an Holganza,11 the test for determining whether a corporation is a
instrument or agency of the government for, "otherwise, it GOCC is simply whether it was created under its own charter for
cannot merit the trust of all and cannot effectively carry out its the exercise of a public function or by incorporation under the
mission."5 It must, in case of invasion or an internal war, general corporation law. The definition of a GOCC under the
maintain its neutrality and independence to be able to fulfill its 1987 Administrative Code, on the other hand, is broad enough
humanitarian tasks. It cannot choose to treat only the wounded to admit of other distinctions as to the kinds of GOCCs.
on one side.
The more crucial factor to consider, said Justice Nachura, is the itself and prove the validity of its creation. The PNRC pointed
definitions reference to the corporation being vested with out that P.D. 1264 and 1643 completely repealed R.A. 95.
functions relating to public needs. In this regard, the PNRC Consequently, the PNRC no longer owed its creation to Congress
Charter states that it is created as a "voluntary organization but to President Marcos pursuant to his power of executive
officially designated to assist the Republic of the Philippines in legislation. The constitutional bar is on Congress.
discharging the obligations set forth in the Geneva Convention As for its organizational nature, the PNRC asserts that it is
x x x."12 These obligations are undoubtedly public or neither a private nor a government corporation but a sui generis
governmental in character. Hence, the PNRC is engaged in the entity, a unique being with no equivalent in corporate
performance of the governments public functions. organizations. While the PNRC performs certain public services,
Justice Nachura added that, at the very least, the PNRC should its neutrality and independence would be compromised if it were
be regarded as a government instrumentality under the 1987 to be deemed as a government-owned corporation or
Administrative Code. An instrumentality "refers to any agency of instrumentality. Besides, it is in fact neither owned nor
the National Government not integrated within the department controlled by the government.
framework, vested with special functions or jurisdiction by law, The PNRC also stressed that, although it has private
endowed with some if not all corporate powers, administering characteristics, it was not created for profit or gain but in
special funds, and enjoying operational autonomy, usually compliance with treaty obligations under the Geneva
through a charter."13The PNRCs organizational attributes, said Conventions. As such, it is an auxiliary of government in the
Justice Nachura, are consistent with this definition. performance of humanitarian functions under international law.
The dissent then cites the unsettling ripple effect which the main To support its stand that it is a sui generis entity, the PNRC
ruling could create on numerous Court decisions, such as those submitted a position paper17 prepared by the International
dealing with the jurisdiction of the Civil Service Commission Federation of Red Cross and Red Crescent Societies (the
(CSC) and the authority of the Commission on Audit (COA). It Federation) explaining the specific nature of National Societies
also noted the absurdity of partially invalidating the PNRC like the PNRC.
Charter as this would have the consequence of imposing There is a need to examine the Courts decision in this case
obligations and providing an operational framework for a legally considering its far reaching effects. Allowing such decision to
non-existing entity. stand will create innumerable mischief that would hamper the
Justice Nachura finally warns against the PNRCs ultimate PNRCs operations. With a void juridical personality, it cannot
demise if it were regarded as a private corporation. Because of open a bank account, issue tax-exempt receipts for donations,
possible violations of the equal protection clause and penal or enter into contracts for delivery of rescue reliefs like blood,
statutes, the PNRC may no longer be extended tax exemptions medicine, and food. Its officers would be exposed to suits in
and official immunity or be given any form of support by the their personal capacities. The validity of its past transactions
National Government, local government units, and the Philippine would be open to scrutiny and challenge. Neither the country
Charity Sweepstakes Office (PCSO). If the PNRC is consequently nor the PNRC needs this.
obliterated, the Philippines will be shirking its obligations under FIRST. Congress created the PNRC to comply with the countrys
the Geneva Conventions. commitments under the Geneva Conventions. The treaties
The dissent finally concluded that Sen. Gordon forfeited his envisioned the establishment in each country of a voluntary
Senate seat for holding two incompatible offices. organization that would assist in caring for the wounded and
Although the main ruling favored Sen. Gordon, he filed a motion sick of the armed forces during times of armed conflict. Upon
for clarification and reconsideration of the Courts decision.14 He proclaiming its adherence to the Geneva Conventions, the
said that the Court decided the case beyond what was Republic of the Philippines forthwith created the PNRC for the
necessary, considering that the parties never raised the purpose contemplated by the treaties. Its creation was not
constitutionality of the PNRC Charter as an issue. He invoked privately motivated, but borne of the Republics observance of
the rule that the Court will not pass upon a constitutional issue treaty obligations. The "whereas clause" of P.D. 1643 or the
unless it is the very lis mota of the case or if it can be disposed revised PNRC Charter lays down this basic premise:
of on some other ground. Since the Court held that Liban, et al xxxx
had no personality to file the petition, the Court should have WHEREAS, more than one hundred forty nations of the world
simply refrained from delving into the constitutionality of the have ratified or adhered to the Geneva Conventions of August
PNRC Charter. Sen. Gordon thus submits that the Court should 12, 1949 for the Amelioration of the Condition of the Wounded
regard the declaration of unconstitutionality of the PNRC Charter and Sick of Armed Forces and at Sea, The Prisoners of War, and
obiter dictum. The Civilian Population in Time of War referred to in this Charter
Liban, et al also filed a motion for reconsideration of the Courts as the Geneva Conventions;
decision, essentially adopting the thesis of Justice Nachura.15 WHEREAS, the Republic of the Philippines became an
Subsequently, the PNRC, which was not a party to the case, independent nation on July 4, 1946, and proclaimed on February
sought to intervene and filed a motion for reconsideration of the 14, 1947 its adherence to the Geneva Conventions of 1929, and
Courts decision.16 It claimed that, although the Court annulled by the action, indicated its desire to participate with the nations
its very existence, it did not give the PNRC the chance to defend of the world in mitigating the suffering caused by war and to
establish in the Philippines a voluntary organization for that the PNRC are thus directly regulated by international
purpose as contemplated by the Geneva Conventions; humanitarian law, unlike ordinary charitable organizations or
xxxx NGOs.
It is thus evident that the PNRCs creation derived primarily from The PNRC also has rights and obligations under international
the Geneva Conventions. When Congress created the PNRC, it humanitarian law that ordinary charitable organizations and
did not intend to form either a private or government-owned NGOs do not have. Foremost of these rights is the privilege to
corporation with the usual powers and attributes that such participate as a full member in the International Conference of
entities might possess. Rather, it set out to form an organization the Red Cross and Red Crescent, in which States also participate
that would be responsive to the requirements of the Geneva as members pursuant to the Geneva Conventions.21 States
Conventions. Section 1 of the PNRC Charter thus provides: Parties and all components of the Movement attend the
SECTION 1. There is hereby created in the Republic of the conference to discuss humanitarian matters on equal footing.22
Philippines a body corporate and politic to be the voluntary No other organization has this exceptional privilege in relation
organization officially designated to assist the Republic of the to a State.
Philippines in discharging the obligations set forth in the Geneva Significantly, both States Parties and the Movements
Conventions and to perform such other duties as are inherent components adopt the Statutes of the Movement during the
upon a national Red Cross Society. The national headquarters conference held every four (4) years.23 The Statutes underscore
of this Corporation shall be located in Metropolitan Manila. the special relationship that National Societies have in relation
As a voluntary organization tasked to assist the Republic in to the State. Article 2 of the Statutes lays down reciprocal rights
fulfilling its commitments under the Geneva Conventions, the and obligations between States Parties to the Geneva
PNRC is imbued with characteristics that ordinary private or Conventions and the National Societies, thus:
government organizations do not possess. Its charters direct 1. The States Parties to the Geneva Conventions cooperate with
reference to the Geneva Conventions gives the PNRC a special the components of the Movement in accordance with these
status in relation to governments of any form, as well as a Conventions, the present Statutes and the resolutions of the
unique place in international humanitarian law.18 Since the International Conference.
impetus for the PNRCs creation draws from the countrys 2. Each State shall promote the establishment on its territory of
adherence to the treaties, it is in this context that its a National Society and encourage its development.
organizational nature should be viewed and understood. 3. The States, in particular those which have recognized the
SECOND. The PNRC is a National Society of the Red Cross National Society constituted on their territory, support,
Movement and is recognized by both the International whenever possible, the work of the components of the
Committee of the Red Cross (ICRC) and the International Movement. The same components, in their turn and in
Federation of Red Cross and Red Crescent Societies. The PNRC accordance with their respective statutes, support as far as
is regarded as a component of the Movement with concomitant possible humanitarian activities of the States.
rights and obligations under international humanitarian law. Its 4. The States shall at all times respect the adherence by all
status as a recognized National Society has imbued it with components of the Movement to the Fundamental Principles.
attributes that ordinary private corporations or government 5. The implementation of the present Statutes by the
entities do not possess. It is a sui generis entity that has no components of the Movement shall not affect the sovereignty of
precise legal equivalent under our statutes. States, with due respect for the provisions of international
The PNRC is not an ordinary private corporation within the humanitarian law.
meaning of the Corporation Code. As stated earlier, its creation As can be seen, therefore, the PNRC is unlike ordinary charitable
was not privately motivated but originated from the States organizations or NGOs in many respects due to the distinct
obligation to comply with international law. The State organized features it directly derives from international law. Although it is
the PNRC to assist it in discharging its commitments under the a local creation, it was so organized as a national Red Cross
Geneva Conventions as an "auxiliary of the public authorities in Society with direct reference to the Geneva Conventions. The
the humanitarian field."19 It was not established by private PNRC was explicitly "designated as the organization which is
individuals for profit or gain, but by the State itself pursuant to authorized to act in matters of relief under said Convention."24
the objectives of international humanitarian law. Consequently, its organizational status cannot be assessed
The PNRC is not an ordinary charitable organization, foundation, independently of the treaties that prompted its establishment.
or non-governmental organization (NGO). As a component of The PNRC cannot also be regarded as a government corporation
the international Movement, it enjoys protection not afforded to or instrumentality. To begin with, it is not owned or controlled
any charitable organization or NGO under the Geneva by the government or part of the government machinery. The
Conventions. For instance, Articles 24 and 26 of the First Geneva conditions for its recognition as a National Society also militate
Convention vests National Society personnel with the same against its classification as a government entity. Article 4 (4) of
status as the armed forces medical services in times of armed the Statutes requires a National Society to "(h)ave an
conflict, subject to certain conditions. Also, only recognized autonomous status which allows it to operate in conformity with
National Societies enjoy exclusive use of the protective red cross the Fundamental Principles of the Movement."
emblem in conformity with the treaties.20 National Societies like
Thus, a National Society must maintain its impartiality, The PNRC is financed primarily by contributions obtained
neutrality, and independence. In its mission "to prevent and through solicitation campaigns and private donations. And yet,
alleviate human suffering wherever it may be found," it must it is required to submit to the President of the Philippines an
make "no discrimination as to nationality, race, religious beliefs, annual report of its activities including its financial condition,
class or political opinions." It must enjoy the confidence of all receipts and disbursements. It is allotted one annual national
and not take sides in hostilities or controversies of a political, lottery draw and is exempt from taxes, duties, and fees on
racial, religious or ideological nature.25 It cannot be seen, importations and purchases, as well as on donations for its
therefore, as an instrument of the State or under governmental disaster relief work and other services.
control. Consequently, the PNRC cannot be classified as either a purely
The Statutes require, however, that a National Society like the private or government entity. It is a hybrid organization that
PNRC "(b)e duly recognized by the legal government of its derives certain peculiarities from international humanitarian law.
country on the basis of the Geneva Conventions and of the For this reason, its organizational character does not fit the
national legislation as a voluntary aid society, auxiliary to the parameters provided by either the Corporation Code or
public authorities in the humanitarian field."26 This signifies a Administrative Code. It is a sui generis entity that draws its
partnership with government in implementing State obligations nature from the Geneva Conventions, the Statutes of the
based on international humanitarian law.27 Movement and the law creating it.
The status of being an "auxiliary" of government in the THIRD. The Constitution does not preclude the creation of
humanitarian field is a precondition to a National Societys corporations that may neither be classified as private nor
existence and recognition as a component of the Movement. In governmental. Sec. 7, Article XIV of the 1935 Constitution,
its position paper, the Federation explained that the status of which was carried over in subsequent versions of the
auxiliary "means that it is at one and the same time a private fundamental law, does not prohibit Congress from creating
institution and a public service organization because the very other types of organizations that may not fall strictly within the
nature of its work implies cooperation with the authorities, a link terms of what is deemed a private or government corporation.
with the State." In other words, the status confers upon the The Constitution simply provides that Congress cannot create
PNRC the duty to be the governments humanitarian partner private corporations, except by general law, unless such
while, at the same time, remaining independent and free from corporations are owned or controlled by the government. It does
government intervention. As a recognized National Society, the not forbid Congress from creating organizations that do not
PNRC must be autonomous, even as it assists government in the belong to these two general types.
discharge of its humanitarian obligations. In Feliciano v. Commission on Audit,28 the Court explained that
Notably, the PNRC Charter is also reflective of the organizations the purpose of the ban against the creation of private
dual nature. It does not only vest the PNRC with corporate corporations by special charter is to prevent the grant to certain
powers, but imposes upon it duties related to the performance individuals, families, or groups of special privileges that are
of government functions. Under Section 1 of the charter, the denied to other citizens. The creation of the PNRC does not
PNRC is "officially designated to assist the Republic of the traverse the purpose of the prohibition, as Congress established
Philippines in discharging the obligations set forth in the Geneva the PNRC to comply with State obligations under international
Conventions." As such, it is obligated "to provide volunteer aid law. The PNRC Charter is simply a manifestation of the States
to the sick and wounded of the armed forces in time of war" and adherence to the Geneva Conventions. By enacting the PNRC
"to perform all duties devolving upon the Corporation as a result Charter, Congress merely implemented the will of the State to
of the adherence of the Republic of the Philippines to the said join other nations of the world in the humanitarian cause.
Convention." The special status of the PNRC under international humanitarian
Moreover, the charter clearly established the PNRC as a National law justifies the special manner of its creation. The State itself
Red Cross Society pursuant to the treaties and Statutes of the committed the PNRCs formation to the community of nations,
Movement. It was authorized "to act in such matters between and no less than an act of Congress should be deemed sufficient
similar national societies of other governments and the compliance with such an obligation. To require the PNRC to
governments and people and the Armed Forces of the Republic incorporate under the general law is to disregard its unique
of the Philippines." The PNRC was to establish and maintain a standing under international conventions. It also ignores the
system of national and international relief and to apply the same very basic premise for the PNRCs creation.
in meeting natural disasters, all in the spirit of the Geneva FOURTH. The main issue in this case is whether or not the office
Conventions. of PNRC Chairman is a government office or an office in a GOCC
In the pursuit of its humanitarian tasks, the PNRC was thus for purposes of the prohibition in Section 13, Article VI of the
granted the power of perpetual succession, the capacity to sue Constitution. The resolution of this question lies in the
and be sued, and the power to hold real and personal property. determination of whether or not the PNRC is in fact a GOCC. As
It was authorized to adopt a seal, but was given exclusive use explained earlier, the PNRC is not a GOCC, but a sui generis
of the Red Cross emblem and badge in accordance with the entity that has no legal equivalent under any of our statutes.
treaties. It may likewise adopt by-laws and regulations and do Consequently, Senator Gordon did not forfeit his Senate seat
all acts necessary to carry its purposes into effect. under the constitutional prohibition.
In view of the PNRCs sui generis character, the Court need not
even dwell on the issue of whether or not the PNRC Charter was
validly enacted. Congress is proscribed only from creating
private corporations which, as demonstrated, the PNRC is not.
The issue of constitutionality was not raised by any of the
original parties and could have been avoided in the first place.
Neither was the PNRC a party to the case, despite being the
entity whose creation was declared void under the main
decision.
Finally, the sui generis character of the PNRC does not
necessarily overturn the rulings of the Court in Camporedondo
and Baluyot. The PNRCs exceptional nature admits of the
conclusions reached in those cases that the PNRC is a GOCC for
the purpose of enforcement of labor laws and penal statutes.
The PNRCs sui generis character compels us to approach
controversies involving the PNRC on a case-to-case basis,
bearing in mind its distinct nature, purposes and special
functions. Rules that govern traditional private or public entities
may thus be adjusted in relation to the PNRC and in accordance
with the circumstances of each case.
ACCORDINGLY, I concur in the decision written for the majority
by Justice Teresita J. Leonardo-De Castro.
ROBERTO A. ABAD
Associate Justice
The CSC, on April 21, 2008, promulgated a Resolution
dismissing petitioner's appeal and imposing upon her the
penalty of dismissal from service. Petitioner filed a motion for
reconsideration with the CSC, but the same was denied.
Thus, petitioner filed a petition for review under Rule 43 with
the CA, and in its assailed Decision dated June 30, 2011, the CA
denied the said petition. Petitioner's motion for reconsideration
was likewise denied on October 6, 2011.
Hence, the present petition with the following grounds relied
THIRD DIVISION upon:
January 18, 2016 GROUNDS FOR THE PETITION
G.R. No. 199440 1
MARY LOU GETURBOS TORRES, Petitioner, THE COURT A QUO ERRED IN NOT FINDING THAT THE CIVIL
vs. SERVICE COMMISSION (CSC) HAS NO APPELLATE
CORAZON ALMA G. DE LEON, in her capacity as Secretary JURISDICTION OVER THE CASE;
General of the Philippine National Red Cross and THE 2
BOARD OF GOVERNORS of the PHILIPPINE NATIONAL THE COURT A QUO SERIOUSLY ERRED IN FAILING TO REALIZE
RED CROSS, National Headquarters,Respondents. THAT RESPONDENT DE LEON HAS NO INTENTION TO DISMISS
DECISION PETITIONER FROM THE SERVICE AND IT WAS SERIOUS ERROR
PERALTA, J.: ON THE PART OF THE CSC TO MODIFY THE SAME OR
For this Court's consideration is the Petition for Review on TERMINATE PETITIONER FROM THE SERVICE WITHOUT ANY
Certiorari,1 under Rule 45 of the Rules of Court, dated December AUTHORITY;
23, 2011 of petitioner Mary Lou Geturbos Torres seeking the 3
reversal of the Decision2 of the Court of Appeals (CA), dated GRANTING ARGUENDO THAT THE CSC HAS CONSTITUTIONAL
June 30, 2011 that affirmed Resolution No. 080691 dated April CONTROL OVER THE PNRC, THE COURT A QUO ERRED IN NOT
2 l, 2008 and Resolution No. 081845 dated September 26, 2008, FINDING THAT THE CSC DID NOT ACQUIRE OR HAD LOST
both of the Civil Service Commission (CSC) that imposed upon APPELLATE JURISDICTION OVER THE CASE; [and]
her the penalty of dismissal from service as Chapter 4
Administrator of the Philippine National Red Cross (PNRC), THE COURT A QUO ERRED IN NOT FINDING THAT THE
General Santos City Chapter for grave misconduct. COMMENT (INITIATORY PLEADING) FILED BY THE KAPUNAN
The facts follow. LOTILLA FLORES GARCIA & CASTILLO LAW FIRM IN BEHALF
When petitioner was the Chapter Administrator of the PNRC, OF THE RESPONDENTS, DATED MARCH 31, 2009, IS NOT
General Santos City Chapter, the PNRC Internal Auditing Office VERIFIED NOR ACCOMPANIED BY A CERTIFICATION AGAINST
conducted an audit of the funds and accounts of the PNRC, FORUM SHOPPING.
General Santos City Chapter for the period November 6, 2002 According to petitioner, this Court has decided that PNRC is not
to March 14, 2006, and based on the audit report submitted to a government-owned and controlled corporation (GOCC),
respondent Corazon Alma G. De Leon (De Leon), petitioner hence, the CSC has no jurisdiction or authority to review the
incurred a "technical shortage" in the amount of P4,306,574.23. appeal that she herself filed. As such, she insists that the CSC
Hence, respondent De Leon in a Memorandum dated January 3, committed grave abuse of discretion in modifying the decision
2007, formally charged petitioner with Grave Misconduct for of respondent De Leon. She further argues that the PNRC did
violating PNRC Financial Policies on Oversubscription, not give due course to her notice of appeal since petitioner's
Remittances and Disbursement of Funds. counsel erroneously addressed and filed her notice of appeal to
After the completion of the investigation of the case against the office of respondent PNRC NHQ BOGs through the office of
petitioner, respondent issued a Memorandum dated June 12, respondent De Leon instead of filing it directly with the CSC, and
2007 imposing upon petitioner the penalties of one month respondent De Leon denied due course to the notice of appeal,
suspension effective July 1-31, 2007 and transfer to the National thus, according to petitioner, there was no more appeal to speak
Headquarters effective August 1, 2007. of. Petitioner also claims that she voluntarily served the
Petitioner filed a motion for reconsideration, but it was denied sentence of one month suspension and transfer of assignment
in a Memorandum dated June 28, 2007. before her counsel erroneously filed the notice of appeal, hence,
Thereafter, petitioner filed a Notice of Appeal addressed to the when the notice of appeal was filed, the decision of respondent
Board of Governors of the PNRC through respondent and De Leon was already final. Finally, petitioner asserts that the CA
furnished a copy thereof to the CSC. Petitioner addressed her erred in not finding that the comment filed by the law firm in
appeal memorandum to the CSC and sent copies thereof to the behalf of the respondents, dated March 31, 2009, violated the
PNRC and the CSC. Respondent, in a memorandum dated rules against forum shopping.
August 13, 2007, denied petitioner's appeal. The petition lacks merit.
As ruled by this Court in Liban, et al. v. Gordon,3 the PNRC, The auxiliary status of [a] Red Cross Society means that it is at
although not a GOCC, is sui generis in character, thus, requiring one and the same time a private institution and a public service
this Court to approach controversies involving the PNRC on a organization because the very nature of its work implies
case-to-case basis. As discussed: cooperation with the authorities, a link with the State. In
A closer look at the nature of the PNRC would show that there carrying out their major functions, Red Cross Societies give their
is none like it not just in terms of structure, but also in terms of humanitarian support to official bodies, in general having larger
history, public service and official status accorded to it by the resources than the Societies, working towards comparable ends
State and the international community. There is merit in PNRC's in a given sector.
contention that its structure is sui generis. x x x No other organization has a duty to be its government's
xxxx humanitarian partner while remaining independent.
National Societies such as the PNRC act as auxiliaries to the It is in recognition of this sui generis character of the PNRC that
public authorities of their own countries in the humanitarian field R.A. No. 95 has remained valid and effective from the time of
and provide a range of services including disaster relief and its enactment in March 22, 1947 under the 1935 Constitution
health and social programmes. and during the effectivity of the 1973 Constitution and the 1987
The International Federation of Red Cross (IFRC) and Red Constitution.
Crescent Societies (RCS) Position Paper, submitted by the PNRC, The PNRC Charter and its amendatory laws have not been
is instructive with regard to the elements of the specific nature questioned or challenged on constitutional grounds, not even in
of the National Societies such as the PNRC, to wit: this case before the Court now.
National Societies, such as the Philippine National Red Cross and xxxx
its sister Red Cross and Red Crescent Societies, have certain By requiring the PNRC to organize under the Corporation Code
specificities deriving from the 1949 Geneva Convention and the just like any other private corporation, the Decision of July 15,
Statutes of the International Red Cross and Red Crescent 2009 lost sight of the PNRC's special status under international
Movement (the Movement). They are also guided by the seven humanitarian law and as an auxiliary of the State, designated to
Fundamental Principles of the Red Cross and Red Crescent assist it in discharging its obligations under the Geneva
Movement: Humanity, Impartiality, Neutrality, Independence, Conventions. Although the PNRC is called to be independent
Voluntary Service, Unity and Universality. under its Fundamental Principles, it interprets such
A National Society partakes of a sui generis character. It independence as inclusive of its duty to be the government's
is a protected component of the Red Cross movement under humanitarian partner. To be recognized in the International
Articles 24 and 26 of the First Geneva Convention, especially in Committee, the PNRC must have an autonomous status, and
times of armed conflict. These provisions require that the staff carry out its humanitarian mission in a neutral and impartial
of a National Society shall be respected and protected in all manner.
circumstances. Such protection is not ordinarily afforded by an However, in accordance with the Fundamental Principle of
international treaty to ordinary private entities or even non- Voluntary Service of National Societies of the Movement, the
governmental organizations (NGOs). This sui generis character PNRC must be distinguished from private and profit-making
is also emphasized by the Fourth Geneva Convention which entities. It is the main characteristic of National Societies that
holds that an Occupying Power cannot require any change in they "are not inspired by the desire for financial gain but by
the personnel or structure of a National Society. National individual commitment and devotion to a humanitarian purpose
societies are therefore organizations that are directly regulated freely chosen or accepted as part of the service that National
by international humanitarian law, in contrast to other ordinary Societies through its volunteers and/or members render to the
private entities, including NGOs. Community."
xxxx The PNRC, as a National Society of the International Red Cross
In addition, National Societies are not only officially recognized and Red Crescent Movement, can neither "be classified as an
by their public authorities as voluntary aid societies, auxiliary to instrumentality of the State, so as not to lose its character of
the public authorities in the humanitarian field, but also benefit neutrality" as well as its independence, nor strictly as a private
from recognition at the International level. This is considered to corporation since it is regulated by international humanitarian
be an element distinguishing National Societies from other law and is treated as an auxiliary of the State.
organizations (mainly NGOs) and other forms of humanitarian Based on the above, the sui generis status of the PNRC is now
response. sufficiently established. Although it is neither a subdivision,
x x x No other organization belongs to a world-wide Movement agency, or instrumentality of the government, nor a
in which all Societies have equal status and share equal government-owned or -controlled corporation or a subsidiary
responsibilities and duties in helping each other. This is thereof, as succinctly explained in the Decision of July 15, 2009,
considered to be the essence of the Fundamental Principle of so much so that respondent, under the Decision, was correctly
Universality. allowed to hold his position as Chairman thereof concurrently
Furthermore, the National Societies are considered to be while he served as a Senator, such a conclusion does not ipso
auxiliaries to the public authorities in the humanitarian field. x x facto imply that the PNRC is a "private corporation" within the
x. contemplation of the provision of the Constitution, that must be
organized under the Corporation Code. As correctly mentioned CSC under the Uniform Rules on Administrative Cases in the Civil
by Justice Roberto A. Abad, the sui generis character of Service (URACCS). It ruled:
PNRC requires us to approach controversies involving As enunciated in the cases cited by petitioner, a decision
the PNRC on a case-to-case basis.4 becomes final even before the lapse of the fifteen-day period to
In this particular case, the CA did not err in ruling that the CSC appeal when the defendant voluntarily submits to the execution
has jurisdiction over the PNRC because the issue at hand is the of the sentence. In the present case, however, it cannot be
enforcement of labor laws and penal statutes, thus, in this said that she voluntarily served her penalty in view of
particular matter, the PNRC can be treated as a GOCC, and as the fact that she appealed therefrom. Moreover, the
such, it is within the ambit of Rule I, Section 1 of the service of the penalty is pursuant to Section 47 of the
Implementing Rules of Republic Act 67135, stating that: Uniform Rules on Administrative Cases in the Civil
Section 1. These Rules shall cover all officials and employees in Service (URACCS) which reads:
the government, elective and appointive, permanent or Section 47. Effect of filing. - An appeal shall not stop the decision
temporary, whether in the career or non-career service, from being executory, and in case the penalty is suspension or
including military and police personnel, whether or not they removal, the respondent shall be considered as having been
receive compensation, regardless of amount. under preventive suspension during the pendency of the appeal,
Thus, having jurisdiction over the PNRC, the CSC had authority in the event he wins the appeal.
to modify the penalty and order the dismissal of petitioner from Petitioner's claim that the Notice of Appeal and the Appeal
the service. Under the Administrative Code of 1987,6 as well as Memorandum were filed with the PNRC and not with the CSC
decisions7 of this Court, the CSC has appellate jurisdiction on deserves scant consideration. Section 43 of the URACCS
administrative disciplinary cases involving the imposition of a pertinently provides:
penalty of suspension for more than thirty (30) days, or fine in Section 43. Filing of Appeals. -
an amount exceeding thirty (30) days salary. The CA, therefore, xxx
did not err when it agreed with the CSC that the latter had A notice of appeal including the appeal memorandum shall be
appellate jurisdiction, thus: filed with the appellate authority, copy furnished the disciplining
The Court cites with approval the disquisition of the CSC in this office. The latter shall submit the records of the case, which shall
regard: be systematically and chronologically arranged, paged and
The Commission is fully aware that under the Civil Service Law securely bound to prevent loss, with its comment, within fifteen
and rules and jurisprudence, it has appellate jurisdiction only on (15) days, to the appellate authority.
administrative disciplinary cases involving the imposition of a An examination of the Notice of Appeal shows that the same
penalty of suspension for more than thirty (30) days, or fine in was addressed to the PNRC and copy furnished the CSC. On the
an amount exceeding thirty (30) days' salary. other hand, an examination of the Appeal Memorandum shows
In the instant case, although the decision appealed from states that the same was addressed to the CSC and copies thereof
that Torres was imposed the penalty of "one month" suspension were sent to both the PNRC and the CSC. It is thus clear that a
from the service, it is unequivocally spelled out therein that the copy of the Notice of Appeal was furnished the CSC and the
period of her suspension is from July 1-31, 2007." This Appeal Memorandum was filed with it. While the rules required
specifically written period unmistakably indicates that Torres that the notice of appeal including the appeal memorandum
was actually imposed the penalty of thirty-one (31) days and shall be filed with the CSC, it is undeniable that furnishing a copy
not merely thirty (30) days or one (1) month.1wphi1 of the Notice of Appeal with the CSC and filing with it the Appeal
Petitioner submits that the actual duration of the period of her Memorandum substantially complied with the rule. The
suspension was only thirty (30) days since July 1, 2007 was a important thing is that the Appeal Memorandum was
legal holiday, it being a Sunday. This submission, however, is clearly addressed to the CSC.9
flawed considering that she was imposed the penalty of "One Anent the issue that respondents' Comment filed before the CA
Month Suspension effective July 1-31, 2007" or for a period of lacks verification and a certificate of non-forum shopping, such
thirty-one (31) days. is inconsequential because a comment is not an initiatory
Even granting that petitioner was imposed the penalty of pleading but a responsive pleading. [T]he required certification
suspension for thirty (30) days only, it should be noted that she against forum shopping is intended to cover an "initiatory
was also imposed another penalty of "Transfer to the NHQ pleading," meaning an "incipient application of a party asserting
effective August 01, 2007." Hence, the CSC would still have a claim for relief."10 A comment, required by an appellate
appellate jurisdiction.8 tribunal, to a petition filed with it is not a pleading but merely
Neither can it be considered that the CSC had lost its appellate an expression of the views and observations of the respondent
jurisdiction because, as claimed by petitioner, she voluntarily for the purpose of giving the court sufficient information as to
served the sentence of one month suspension and transfer of whether the petition is legally proper as a remedy to the acts
assignment before her counsel filed the notice of appeal, hence, complained of.11
the decision of the PNRC was already final even before a notice Based on the above disquisitions, all other issues presented by
of appeal was filed with the CSC. The CA was correct in finding petitioner are rendered immaterial.
that petitioner's appeal was properly and timely made with the
WHEREFORE, the Petition for Review on Certiorari under Rule
45 of the Rules of Court dated December 23, 2011 of petitioner
Mary Lou Geturbos Torres is DENIED for lack of merit. The
Decision of the Court of Appeals, dated June 30, 2011, is
therefore AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairman
JOSE PORTUGAL PEREZ BIENVENIDO L. REYES
Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions
in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P.A. SERENO
Chief Justice
CERTIFIED TRUE COPY
WILFREDO V. LAPITAN
Division Clerk of Court
Third Division
February 17, 2016