Midnight Appointments Ruling

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

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

RULE; EXCEPTION. As a rule, once an appointment is issued, it cannot be reconsidered
specially where the appointee has quali ed. On the other hand, the authorities admit of
exceptional circumstances justifying revocation such as when mass ad-interim
appointments (350) issued in the last hours of an outgoing Chief Executive are to be
considered by the Commission on Appointments that is different from that be submitted
by an incoming Chief Executive who may not wholly approve of the selections especially if
it is doubtful that the outgoing President exercised double care in extending such
appointments.
2. ID.; ID.; MALACAANG'S PRACTICE; REASONS FOR. It is Malacaang's practice, which
is logical, to submit as-interim appointments only when the Commission on Appointments
is in session. One good reasons for the practice is that only those who have accepted the
appointment and qualified are submitted for confirmation.
3. ID.; EXECUTIVE DEPARTMENT; CARE-TAKER ADMINISTRATION; EXTENT OF
AUTHORITY. After the proclamation of the election of an incoming Chief Executive, the
outgoing Chief Executive is no more than a "care- taker" administration. He is duty bound
to prepare for the orderly transfer of authority to the incoming President and he should not
do acts which, he ought to know, would embarrass or obstruct the policies, of his
successor. It is not for him to use his powers as incumbent President to continue the
political warfare that had ended or to avail himself of presidential prerogatives to serve
partisan purposes.
4. ID.; ID.; ID.; FILLING OF VACANCIES. The lling up of vacancies in important positions,
if few, and so spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee's quali cations may be
undoubtedly permitted. But the issuance of 350 appointments in one night and the
planned induction of almost all of them a few hours before the inauguration of the new
President may, with some reason, be regarded by the latter as an abuse of presidential
prerogatives.
5. ID.; ID.; ID.; ID.; DOUBLE CARE NECESSARY. When the President makes ad-interim
appointments, he exercises a special prerogative and is bound to be prudent to insure
approval of his selection either by previous consultation with the members of the
Commission or by thereafter explaining to them the reason for such selection. Where the
Commission on Appointments that will consider the appointees is different from that
existing at the time of the appointment and where the names are to be submitted by his
successor who may not wholly approved of the selections, the President should be doubly
careful in extending such appointments.
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6. ID.; SEPARATION OF POWERS; POWER OF APPOINTMENT; CASE AT BAR. The
separation of powers, under the circumstances in the instant case, prevents the Supreme
Court to disregard a presidential directive issued by an incoming President cancelling
"midnight" or "last minute" appointments.
7. ID.; PUBLIC OFFICERS' APPOINTMENT; EQUITABLE RIGHTS; CASE AT BAR. Once the
appointee has quali ed, the latter's equitable rights can be set up to deny the power to
revoke the appointment. Yet it is doubtful if such equity might be set up in the present
case where rush conditional appointments, hurried maneuvers and other happenings
detracted from that degree of good faith, morality and propriety which form the basic
foundation of claims to equitable relief.
PADILLA, J., concurring:
1. POLITICAL LAW; AD-INTERIM APPOINTMENTS DEFINED. Ad-interim appointments
that the President may make during the recess of the Congress are those made during a
period of time from the adjournment of the Congress to the opening session, regular or
special, of the same Congress.
2. ID.; ID.; RECESS DEFINED. The term "recess" in its broadest sense, means and refers
to the intervening period between adjournment of a regular session of one hundred days
exclusive of Sundays, or of a special session which cannot continue longer than thirty days,
and the convening thereof in regular session once every year on the fourth Monday of
January or in special session to consider general legislation or only such subjects as he
(the President) may designate. And such intervening period refers to the same congress
that had adjourned and was to be convened. Such intervening adjourned and one newly
chosen or elected to meet in regular session as provided for by the Constitution, or in
special session by the call of the President.
3. ID.; ID.; "THE NEXT ADJOURNMENT OF CONGRESS DEFINED. Ad-interim
appointments made during the recess of the Congress are effective only until disapproval
by the Commission on Appointments or until the next adjournment of the Congress.
Therefore, such appointments ceased to be valid after the term of the Congress existing at
the time of the making of such appointments had ended or expired. Since that Congress
no longer exists and hence can no longer convene and then "adjourn."
BAUTISTA ANGELO, J.,concurring:
1. POLITICAL LAW; AD-INTERIM APPOINTMENTS; RECESS DEFINED. The term "recess"
has a de nite legal meaning. It means the interval between a session of Congress that has
adjourned and another of the same Congress. It does not refer to the interval between the
session of one Congress and that of another. In that case the interval is not referred to as
a "recess" but adjournment sine die.
2. ID.; AD-INTERIM APPOINTMENT; WHEN DEEMED COMPLETE BODY. The Commission
on Appointments under our constitutional set-up is not a continuing body but one that co-
exists with the Congress that has created it. This is so because said Commission is a
creation of the Senate and of the House of Representatives. While the Senate is a
continuing body, the House ceases at the end of its fourth year. It cannot therefore be
continuing it being a creation of a body half of which is alive and the other half has ceased
to exist.
3. ID.; AD-INTERIM APPOINTMENT; WHEN DEEMED COMPLETE. An ad-interim
appointment to be complete must be submitted to the Commission on Appointments
once the same is constituted. It cannot be submitted to the Commission on Appointments
of a different Congress but only to the Commission on Appointments of the Congress that
has created it.
4. ID.; ID.; ID.; APPOINTEE MUST ASSUME OFFICE. An ad-interim appointment is not
complete until the appointee takes the oath of of ce and actually takes possession of the
position or enters upon the discharge of its duties.
CONCEPCION, J.: concurring in part and dissenting in part:
1. PROHIBITION AND MANDAMUS; ISSUED ONLY WHEN RIGHT IS CLEAR. The grant of
writs of prohibition and mandamus is ordinarily within the sound discretion of the courts,
to be exercised on equitable principles and that the writs should be issued when the right
to the relief is clear.
2. POLITICAL LAW; APPOINTMENT; WHEN IRREVOCABLE. Save where the incumbent
has a temporary appointment or is removable at the will of the appointing power, an
appointment once complete, by the performance of all acts required by law of the
appointing power, is irrevocable.
3. ID.; ID.; ERROR OR FRAUD; EFFECT. An appointment may be revoked by reason of error
of fraud in the manner of appointment but not if the fraud or mistake refers to the intent of
the appointing power in choosing a particular appointee.
4. ID.; AD-INTERIM APPOINTMENT; WHEN COMPLETE AND IRREVOCABLE. An ad-
interim appointment made during a recess of Congress, is complete and irrevocable upon
the performance of the last act required by law from the appointing power, even without
previous notice to the appointee or acceptance by him, or without subsequent action of
the legislative organ that may terminate its effectivity.
5. ID.; ID.; ID.; WHERE AD-INTERIM MUST BE ACTED UPON BY ANOTHER AGENCY. The
irrevocability of the ad-interim appointment is more apparent where the House,
Commission on Appointments or other agency of Congress charged with the function of
terminating the effectivity of such appointment, may act thereon, by approving or
disapproving the same.
6. ID.; ID.; CONTINUITY OF COMMISSION ON APPOINTMENTS IMMATERIAL. The
question whether the Commission on Appointments is or is not a continuing body cannot
affect the determination of whether the appointment may still be revoked once issued. It is
only required by the Constitution that such Commission must have an opportunity to
approve or disapprove the appointment and its inaction, despite such opportunity must be
understood as an expression of unwillingness to approve it.
7. ID.; ID.; REVOCATION. The revocation of an appointment, if feasible, should be
communicated to the appointee before the moment he quali ed. Any revocation
thereafter, is tantamount to removal.
8. ID.; ID.; WHERE APPOINTEE HAS QUALIFIED. Once an appointee has quali ed, he
acquires a legal, not merely equitable right, which cannot be taken away from him either by
revocation of the appointment or by removal except for cause and with previous notice
and hearing.
9. ID.; ID.; RECESS DEFINED. The term "recess" appearing in Section 10 (4) of Article VII
of the Constitution should be construed to mean "while Congress is not in session" and
this is con rmed by the practice consistently observed in the Philippines for time
immemorial.
10. ID.; APPOINTMENT; ASPECTS. Appointments made by the President have two (2)
aspects, namely, the legal and the political. The rst refers to his authority to make the
appointments. The second deals with the wisdom in the exercise of such activity, as well
as with its propriety, whether a given vacancy or number of vacancies should be lled, or
who among several quali ed persons shall be chosen, or whether a given appointment or
number of appointments will favor the political party to whom the power of appointment
belongs and will injure the interest of a rival political party and to what extent, are,
essentially and typically political matters.
11. ID.; ID.; WHEN A POLITICAL QUESTION ARISES. The question of whether certain
appointments should be sanctioned or turned down by reason of the improper, immoral or
malevolent motives with which said matters were allegedly handled is clearly political and
as such its determination belongs not to the courts of justice but to the political organ
established to check possible abuses in the exercise of the appointing power - the
Commission on Appointments.
12. ID.; SEPARATION OF POWERS; EXECUTIVE DEPARTMENT. The principle of
separation of powers forbids inquiry into the motives of the Executive department in
making the appointments.
BARRERA. J., dissenting:
1. POLITICAL LAW; APPOINTMENTS; RECESS DEFINED; DISTINGUISHED WITH
ADJOURNMENT. Recess means the period after the nal adjournment of Congress for
the session and before the next session begins while an adjournment during a session of
Congress means a merely temporary suspension of business from day to day, or for such
brief periods of time as are agreed upon by the joint action of the two houses.
2. ID.; CONSTITUTION; INTERPRETATION OF TERM RECESS. Paragraph 4, Section 10 of
Article VII of the Constitution speaks of "recess" without making any distinction between
the sessions of one Congress and the sessions of another. When the law makes no
distinction, no distinction should be made, especially and defeat the evident purpose of the
framers of the Constitution.
3. ID.; COMMISSION ON APPOINTMENTS; CONTINUING BODY. The Commission on
Appointments as a constitutional body continues to exist but only its membership charges
periodically. It is not a creature of the Congress.
4. ID.; AD-INTERIM APPOINTMENT; DOES NOT LAPSE WITH END OF TERM OF OFFICE OF
CONGRESSMEN IN COMMISSION ON APPOINTMENTS. An ad-interim appointment
does not automatically lapse with the ending of the term of of ce of the twelve
Congressmen composing one-half of the membership of the Commission on
Appointments. The Commission is a continuing body.
5. ID.; ID.; CAN NOT BE REVOKED ONCE APPOINTEE HAS QUALIFIED. An ad- interim
appointment can not be recalled or withdrawn after the appointee has quali ed for the
position to which he was appointed.
6. ID.; JUDICIARY; NOT REPOSITORY OF ALL REMEDIES. The judiciary is not the
repository of remedies for all political or social evils. It has no power to revise even
arbitrary or unfair action of the other departments taken in pursuance of the power
committed exclusively to those departments by the Constitution. There is still the ultimate
remedy by the people in the exercise of their sovereign right which is the source of all
authority.
7. ID.; ID.; ROLE OF COURTS. The role of courts in our scheme of government is to
interpret the law and render justice under it. This simply means that whatever may be the
personal feelings as to the propriety, morality, or wisdom of any of cial act or actuation of
a public of cer or any agency of the government within their respective competence
brought to the attention of the Court for adjudication, they should not be permitted to
prevail over clear legal considerations, for ours is a regime under the Rule of Law.
RESOLUTION
BENGZON , C.J : p
Without prejudice to the subsequent promulgation of a more extended opinion, the Court
adopted today, the following resolutions:
On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona as
ad interim Governor of the Central Bank. On the same day, the latter took the
corresponding oath.
On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed of ce; and
on December 31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and
cancelling all ad interim appointments made by President Garcia after December 13, 1961
(date when he, Macapagal, had been proclaimed elected by the Congress). On January 1,
1962, President Macapagal appointed Andres V. Castillo as ad interim Governor of the
Central Bank, and the latter qualified immediately.
On January 2, 1962, both appointed exercised the powers of their of ce, although Castillo
informed Aytona of his title thereto; and some unpleasantness developed in the premises
of the Central Bank. However, the next day and thereafter, Aytona was de nitely prevented
from holding office in Central Bank.
So, he instituted this proceeding which is practically, a quo warranto, challenging Castillo's
right to exercise the powers of Governor of the Central Bank. Aytona claims he was validly
appointed, had quali ed for the post, and therefore, the subsequent appointment and
quali cation of Castillo was void, because the position was then occupied by him. Castillo
replies that the appointment of Aytona had been revoked by Administrative Order No. 2 of
Macapagal; and so, the real issue is whether the new President had power to issue the
order of cancellation of the ad interim appointments made by the past President, even
after the appointees had already qualified.
The record shows that President Garcia sent to the Commission on Appointments
which was not then in session a communication dated December 29, 1961, submitting
"for con rmation" ad interim appointments of assistant director of lands, councilors,
mayors, members of the provincial boards, scals, justices of the peace, of cers of the
army, etc.; and the name of Dominador R. Aytona as Governor of the Central Bank occupies
number 45, between a justice of the peace and a colonel of the Armed Forces.
Another communication of President Garcia bearing the same date, submitted a list of ad
interim appointments of Foreign Affairs of cers, judges, scals, chiefs of police, justices
of the peace, mayors, councilors, etc. number 63 of which was that of Dominador R.
Aytona for Governor of the Philippines in the Boards of International Monetary Fund,
International Bank for Reconstruction and Development, etc.
A third communication likewise dated December 29, 1961, addressed to the Commission
on Appointments submitted for con rmation 124 names of persons appointed as judges
of rst instance, members of provincial boards, and boards of government corporation,
scals, justices of the peace, even one associate justice of this Court occupying position
No. 8 and two associate justices of the Court of Appeals (9 and 10) between an assistant
of the Solicitor-General's Of ce, and the chairman of the board of tax appeals of Pasay
City, who in turn are followed by judges of rst instance, and inserted between the latter is
the name of another associate justice of the Court of Appeals.
There were other appointments thus submitted by President Garcia on that date,
December 29, 1961. All in all, about three hundred fty (350) "midnight" of "last-minute"
appointments.
In revoking the appointments, President Macapagal is said to have acted for these and
other reasons: (1) the outgoing President should have refrained from ling vacancies to
give the new President opportunity to consider names in the light of his new policies,
which were approved by the electorate in the late elections; (2) these scandalously hurried
appointments in mass do not fall within the intent and spirit of the constitutional provision
authorizing the issuance of ad interim appointments; (3) the appointments were irregular,
immoral and unjust, because they were issued only upon the condition that the appointee
would immediately qualify obviously to prevent a recall or revocation by the incoming
President, with the result that those deserving of promotion or appointment who preferred
to be named by the new President declined and were by-passed; and (4) the abnormal
conditions surrounding the appointment and quali cations evinced a desire on the part of
the outgoing President merely subvert the policies of the incoming administration.
It is admitted that many of the persons mentioned in the communication to the
Commission on Appointments dated December 29, 1961, did not qualify. There is
evidence that in the night of December 29, there was a scramble in Malacaang of
candidates for positions trying to get their written appointments or having such
appointments changed to more convenient places, after some last-minute bargaining.
There was unusual hurry in the issuance of the appointments which were not coursed
through the Department Heads and in the confusion, a woman appointed judge was
designated "Mr." and a man was designated "Madam." One appointee who got his
appointment and was required to qualify, resorted to the rush of asking permission to
swear before a relative official, and then never qualified.
We are informed, it is Malacaang's practice which we nd to be logical to submit ad
interim appointments only when the Commission on Appointments is in session. One good
reason for the practice is that only those who have accepted the appointment and the
quali ed are submitted for con rmation. Nevertheless, this time, Malacaang submitted
its appointments on the same day they were issued; and the Commission was not then in
session; obviously because it foresaw the possibility that the incoming President would
refuse to submit later the appointees of his predecessor. As a result, as already adverted
to, some persons whose names were submitted for con rmation had not quali ed nor
accepted their appointments.
Because of the haste and irregularities, some judges of rst instance quali ed for districts
wherein no vacancies existed, because the incumbents had not quali ed for other districts
to which they had been supposedly transferred or promoted.
Referring speci cally to judges who had not quali ed, the course of conduct adopted by
Former Chief Justice Moran is cited. Being ambassador in Spain and desiring to return to
his Court even as associate justice, Moran was tendered an ad interim appointment
thereto by President Quirino, after the latter had lost the election to President Magsaysay,
and before leaving the Presidency. Said Ambassador declined to qualify being of the
opinion that the matter should be left to the incoming newly-elected President.
Of course, nobody will assert that President Garcia ceased to be such earlier than at noon
at December 30, 1961. But it is common sense to believe that after the proclamation of
the election of President Macapagal, his was no more than a "care-taker" administration.
He was duty bound to prepare of the orderly transfer of authority to the incoming
President, and he should not do acts which he ought to know, would embarrass or
obstruct the policies of his successor. The time for debate had passed; the electorate had
spoken. It was not for him to use his powers as incumbent President to continue the
political warfare that had ended or to avail himself of presidential prerogatives to serve
partisan purposes. The ling up of vacancies in important positions, if few, and so spaced
as to afford some assurance of deliberate action and careful consideration of the need for
the appointment and the appointee's quali cations may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned induction of almost all of them
a few hours before the inauguration of the new President may, with some reason, be
regarded by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to ll all vacant positions 1 irrespective of tness and
other conditions, an thereby to deprive the new administration of an opportunity to make
the corresponding appointments.
Normally, when the President makes appointments with the consent of the Commission
on Appointments, he has the bene t of their advice. When he makes ad interim
appointments, he exercises a special prerogative and is bound to be prudent to insure
approval of his selection either by previous consultation with the members of the
Commission or by thereafter explaining to them the reason for such selection. Where,
however, as in this case, the Commission on Appointments that will consider the
appointees is different from that existing at the time of the appointment 2 and where the
names are to be submitted by his successor, who may not wholly approve of the
selections, the President should be doubly careful in extending such appointments. Now, it
is hard to believe that in signing 350 appointments in one night, President Garcia exercised
such "double care" which was required and expected of him; and therefore, there seems to
be force to the contention that these appointments fall beyond the intent and spirit of the
constitutional provision granting to the Executive authority to issue ad interim
appointments.
Under the circumstances above described, what with the separation of powers, this Court
resolves that it must decline to disregard the Presidential Administrative Order No. 2,
cancelling such "midnight" or "last-minute" appointments.
Of course, the Court is aware of many precedents to the effect that once an appointment
has been issued, it cannot be reconsidered, specially where the appointee has quali ed.
But none of them refer to mass ad interim appointments (three hundred and fty), issued
in the last hours of an outgoing Chief Executive, in a setting similar to that outlined herein.
On the other hand, the authorities admit of exceptional circumstances justify revocation 3
and if any circumstances justify revocation, those described herein should t the
exception.
Incidentally, it should be stated that the underlying reason for denying the power to revoke
after the appointee has quali ed is the latter's equitable rights. Yet it is doubtful if such
equity might be successfully set up in the present situation, considering the rush
conditional appointments, hurried maneuvers and other happenings detracting from that
degree of good faith, morality and propriety which form the basic foundation of claims to
equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated
with the stratagem to beat the deadline, whatever the resultant consequences to the
dignity and ef ciency of the public service. Needless to say, there are instances of the
public service. Needless to say, there are instances wherein not only strict legality, but also
fairness, justice and righteousness should be taken into account.
WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby
dismiss the action, without costs.
Labrador, Reyes, J.B.L., Paredes and De Leon, JJ., concur.
Separate Opinions
PADILLA , J., concurring:
Once more this Court has to pass upon and determine a controversy that calls for an
interpretation of the provisions of the Constitution. The facts that gave rise to this petition
need not be re-stated as they are set forth in opinion rendered for the Court. The question
is whether the appointment of a person to a public of ce by a President whose term of
of ce was about to expire or cease is lawful or does not contravene the Constitution; or, if
lawful after appointee has taken his oath, until when would such appointment be valid and
effective. The constitutional point involved seems to have been overlooked by the framers
of the Constitution. It would seem that the framers, well-meaning person that they were,
never foresaw an eventuality such as the once confronting the Republic. The framers never
thought and anticipated that a citizen elevated by the people to such an exalted of ce as
the President of the Republic, would perform an act which, though not expressly prohibited
by the Constitution and the law, ought not to be done, since a sense of propriety would be
enough to stop him from performing it.
The petitioner invokes section 10, paragraph 4, article VII, of the Constitution which
provides that
The President shall have the power to make appointments during the recess of
the Congress, but such appointments shall be effective only until disapproval by
the Commission on Appointments or until the next adjournment of the Congress.
Under these constitutional provisions there seems to be no doubt that the President may
make the appointment, and if approved by the Commission on Appointments, it would
unquestionably be lawful, valid and effective, but if disapproved or not acted upon by the
Commission on Appointments then the appointment becomes ineffectual and the
appointee ceases and can no longer perform the duties of the of ce to which he had been
appointed.
It is urged that the petitioner's appointment having been made by the President during the
recess of the Congress and he having taken his oath, the appointment is lawful, valid and
effective until disapproval by the Commission on Appointments or until the next
adjournment of the Congress should the Commission on Appointments fail to act on it.
Ad interim appointments that the President may make during the recess of the Congress
are those made during a period of time from the adjournment of the Congress to the
opening session, regular or special, of the same Congress. In other words, if the President
had convened in a special session of the fourth Congress whose term was to expire on the
30th of December 1961 and during such session the ad interim appointments had been
con rmed by the Commission on Appointments there would be little doubt that the
appointments would be lawful and valid.
The government established by the Constitution is one of checks and balances to preclude
and prevent arrogation of powers by officers elected or appointed under it.
Under the provisions of the Constitution "The term of of ce of Senators shall six years and
shall begin on the thirtieth day of December next following their election." 1 And "The term
of the Members of the House of Representatives shall be four years and shall begin on the
thirtieth day of December next following their election." 2 Under section 10, paragraph 4,
article VII, of the Constitution, above quoted, the President may make appointments during
the recess of the Congress, "but such appointments during the recess of the Congress,
"but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress."
The term "recess", in its broadest sense, means and refers to the intervening period
between adjournment of a regular session of one hundred days exclusive of Sundays, or of
a Special session which cannot continue longer than thirty days, and the convening thereof
in regular session once every year on the fourth Monday of January or in special to
consider general legislation or only such objects as he (the President) may designate. 3
And such intervening period refers to the same Congress that had adjourned and was to
be convened. Such intervening period cannot refer to two different Congresses, one that
has adjourned and one newly chosen or elected to meet in regular session as provided for
by the Constitution, or in special session by the call of the President.
"The term of the President . . . shall end at noon on the thirtieth day of December following
the expiration of four years after (his) election and the term of (his) successor shall begin
from such time." 4
If the ad interim appointments made by the President of during the recess of the Congress
are effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress a limitation on the power of the President there is a
cogent an strong reason for holding to be the intent of the framers of the Constitution that
such appointments made by him ceased to be valid and effective after the term of the
Congress existing at the time of the making of such appointments has ended or expired.
The end or expiration of the term of the Congress existing at the time of the making of the
ad interim appointments by the President is a stronger cause or reason for the lapse or
ineffectuality of such appointments than "the next adjournment of the Congress." Since
that Congress no longer exists and hence can no longer convene and then "adjourn." The
effectivity and validity of the appointment of the petitioner as Governor of the Central Bank
ceased, lapsed and expired on the thirtieth of December 1961. He is no longer entitled to
hold the of ce to which he had been appointed. My vote, therefore, is for the denial of the
petition.
Dizon, J., concurs.
BAUTISTA ANGELO , J., concurring:
In addition to the reasons stated in the resolution adopted by this Court on January 19,
1962, I wish to express the following views:
1. The "midnight appointments" made by President Garcia were extended by him under
Section 10, Paragraph 4, Article VII of the Constitution which provides: "The President shall
have the power to made appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournments can only be made during the recess of
Congress because they are ad interim appointments.
The term "recess" has a de nite legal meaning. It means the interval between a session of
Congress that has adjourned and another of the same Congress. It does not refer to the
interval between the session of one Congress and that of another. In that case the interval
is no referred to as a "recess" but an adjournment sine die. Thus, in the case of Tipton v.
Parker, 71 Ark. 194, the court said: "The 'recess' here referred to by Judge Cooley means
the intermission between sittings of the same body at its regular or adjourned session,
and not to the interval between the nal adjournment of one body and the convening of
another at the next regular session. When applied to a legislative body, it means a
temporary dismissal, and not an adjournment sine die." Since the appointments in question
were made after the Fourth Congress has adjourned sine die and ceased to function on
December 30, 1961, they cannot partake of the nature of ad interim appointments within
the meaning of the Constitution.
2. The Commission on Appointments under our constitutional set-up is not continuing
body but one that co-exists with the Congress that has created it. This is so because said
Constitution is a creation of the Senate and of the House of Representatives. While the
Senate is a continuing body, the House ceases at the end of its fourth year. It cannot
therefore be continuing it being a creation of a body half of which is alive and the other half
has ceased to exist. This theory can also be gleaned from the proceedings of the
constitutional convention.
Thus, the preliminary draft of the Philippine Constitution provides for a permanent
Commission and for the holding of sessions of the Commission even during the recess of
Congress. After mature deliberation the proposal was defeated and a substitute was
adopted which is now embodied in Article VI, Section 12, of our Constitution. As a matter
of fact, as nally adopted, the Commission on Appointments has to be organized upon the
convening of a new Congress after the election of the Speaker of the House of
Representatives or of the President of the Senate, as the case may be, as provided for in
Section 13, Article VI of the Constitution (Article VII, Preliminary Draft of the Constitution,
Vol. 2, Aruego: The Framing of the Constitution, pp. 982, 987).
An ad interim appointments, to be complete, needs to be submitted to the Commission on
Appointments once the same is constituted. This re ected in the Constitution when it
provides that "such appointments shall be effective only until disapproval by the
Commission on Appointments once the same is constituted. This is re ected in the
Constitution when it provides that "such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress" (Section 10, Paragraph 4, Article VII). This means that it must be submitted to
the commission on Appointments of the Congress that has created it. It cannot be
submitted to the Commission on Appointments of a different Congress. Since the
appointments in question were submitted to the Commission on Appointments which
ceased to function on December 30, 1961, they lapsed upon the cessation of said
Commission. Consequently, they can be recalled by the new Chief Executive.
3. An ad interim appointment is not complete until the appointee takes the oath of of ce
and actually takes possession of the position or enters upon the discharge of its duties.
The mere taking of the oath of of ce without actual assumption of of ce is not suf cient
to constitute the appointee the actual occupant thereof who may not be removed
therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d. 584). The case of
Summers v. Ozaeta, 81 Phil., 754, cannot be cited as a precedent as to when an ad interim
appointment as judge at large. After assuming the of ce and discharging his duties, his
appointment was not con rmed. He claimed that he could still revert to his former
position as cadastral judge. True, this Court made a statement therein that an ad interim
appointment becomes permanent after taking the oath of of ce, but such statement is
merely an obiter dictum because the case could have been decided on the doctrine that,
having accepted an incompatible of ce, petitioner was deemed to have abandoned the
position of cadastral judge.
In relying on certain cases for the proposition that once an appointee has taken the oath of
of ce his appointment becomes irrevocable petitioner fails to consider that in said cases
there had either been an actual discharge of duty and actual physical possession or
assumption of office following the oath-taking as to constitute the appointee the occupant
of the position from which he cannot be removed without cause. Even the case of Marbury
v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69, cannot be invoked as a precedent, for there
the appointees were merely nominated and their nominations con rmed by the
Commission on Appointments even if they have later taken their oath of of ce. Certainly,
they can no longer be deprived of their appointments for they the executive would be
acting in disregard of the con rming body which is a coordinate and independent body not
subject to his control.
Since the appointments in question were made not in the light of the views herein
expressed, I am of the opinion that they did not ripen into valid and permanent
appointments and as such were properly recalled by the new Chief Executive.
CONCEPCION , J., concurring in part and dissenting in part:
It is well settled that the granting of writs of prohibition and mandamus is ordinarily within
the sound discretion of the courts, to be exercised on equitable principles, and that said
writs should be issued when the right to the relief is clear (55 C.J.S. 25, 29, 73 C.J.S. 18).
Insofar as the majority resolution relied upon discretion and the equities of the case in
denying said writs, I concur, therefore, in the aforementioned resolution.
However, I cannot see my way clear to subscribing to the observations therein made
representing the motives allegedly underlying petitioner's appointment and that of may
others who are not parties in this case, and justifying the revocation of such appointments.
My reasons, among others, are:
1. Save where the incumbent has a temporary appointment or its removable at the will of
the appointing power an appointment once complete, by the performance of all acts
required by law of the appointing power, is irrevocable.
"An appointment to of ce may be revoked at any time before the appointment
becomes nal and complete, but not thereafter unless the appointee is removable
at the will of the appointing power. For the purpose of this rule, an appointment to
of ce is complete when the last act required of the person or body vested with the
appointing power had been performed. Where by constitutional, statutory, or other
legal provision it is required that certain steps be taken to make an effective
appointment, it has been held that the appointment becomes complete beyond
the possibility of recall when the last of the prescribed steps is taken, and that,
where no method of appointment is provided, an appointment does not become
effective and beyond recall until the appointing of cer by some act or word
evinces a nal intent to vest the appointee with title to the of ces." (67 C.J.S., pp.
161-162)
"After the act of appointment is complete, the appointing authority may not
revoke its former appointment and make another. And Appointment to of ce is
complete when the last act required of the person or body vested with the
appointing power has been performed." (56 C.J.S., pp. 954)
"In all jurisdictions where appointment to of ce is regarded as an executive
function, as here, an appointment to of ce once made is incapable of revocation
or cancellation by the appointing executive in the absence of a statutory or
constitutional power of removal. Barrett v. Duff, 114 Kan. 220; 217 P. 918; People
v. Mizner, 7 Cal. 519, State v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas.
1006; Draper v. State, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D, page 305,
Annotation." (McChesney v. Sampson, 23 S.W. 2d., 584)
May an appointment be revoked by reason of error or fraud? This question was taken up in
Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Sco eld vs. Starr (63 A 512). The rst
involved a City Charter providing that its common council shall, in joint convention, Coogan
obtained a majority of the votes cast and of the convention. Upon announcement of this
result, a member of the convention offered a resolution declaring Coogan elected, but the
resolution was defeated. Then, two resolutions were offered and approved: one declaring
that the ballots taken were null and of no effect by reasons of errors in the same and
another declaring Barbour elected prosecuting attorney. The issue was who had been
appointed thereto. The court held that it was Coogan, he having obtained a clear majority
and there having been no error or fraud in the voting, although it did not deny the power of
the convention to correct errors and to nullify the effects of fraud in the voting by
invalidating the same and calling another election, had the proceedings been tainted with
such error or fraud.
The second case referred to a similar provision in a city charter, to the effect that
appointments by the common council shall be by ballot and that the person receiving a
plurality of ballots shall be elected. The rst balloting taken for the election of the city
surveyor of Brigeport resulted in 25 ballots being cast. It was announced that there was
one ballots more than members voting, and that there were 13 ballots for Sco eld, 11 for
Starr and one blank ballot. Sco eld maintained that this result amounted to his
appointment precluding the council from taking a new ballot but such pretense was
rejected. Inasmuch as the number of ballots case exceeded the number of persons voting,
the council was justi ed in believing that the proceeding was not free from suspicion of
fraud or mistake in the voting and, accordingly in taking another vote.
In both cases, the fraud or mistake alluded to referred to the manner of voting or of
counting the ballots cast, not to the intent of the voters in choosing a particular appointee.
2. An ad interim appointment, made during a recess of Congress, is complete and
irrevocable upon the performance of the last act required by law from the appointing
power, even without previous notice to the appointee, or acceptance by him, or without
subsequent action of the legislative organ that may terminate its effectivity.
"In the case of appointment made by a single executive such as a governor,
mayor, etc., it is undisputed that the appointment once made is irrevocable.
xxx xxx xxx
"Where an appointment subject to con rmation by the senate is made by a

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

apparent when we consider that the House, Commission on Appointments or other agency
of Congress charged with the function of terminating the effectivity of such appointment,
may act thereon, by approving or disapproving the same, even though the Executive had
not submitted or forwarded it to said House, Commission or agency of Congress, and
even though either the outgoing or the incoming Executive shall have submitted for
confirmation the name of a subsequent appointee in lieu of the first one.
This was the situation met in People ex rel. Emerson vs. Shawver (30 Wyo. 366, 222 Pac.
11). The facts therein were: On July 1, 1919, Governor Carey of Wyoming appointed
Emerson as state engineer, to ll the vacancy caused by the resignation of its incumbent.
Upon the expiration of the latter's term, Governor Carey reappointed Emerson for a full
term of six (6) years, from and after April 1, 1921. This fact appointment was con rmed by
the state legislature at its next session in 1923. Prior thereto, however, Governor Carey's
term had expired and his successor had appointed Shawver as state engineer. Thereupon
Shawver ousted Emerson from such of ce. It was held that Emerson had a better right
thereto; that his appointment in 1921 was a completed appointment, requiring no action
by the Senate to entitle him to hold said of ce; that a recess appointment once made by
"the executive is not subject to reconsideration or recall, "even though not as yet con rmed
by the Senate, inasmuch as," the appointment alone confers upon the appointee for the
time being the right to take and hold the of ce, and constitutes the last act respecting the
matter to be performed by the executive power"; and that, although the term of Governor
Carey had expired and neither he nor his successor had forwarded Emerson's appointment
to the Senate for con rmation or requested the Senate to act upon said appointment, the
same had been validly confirmed by said body, for
"The provision as to the of ce here in question found in the constitution does not
say that the appointment made by the Governor shall be con rmed by the Senate
when requested by the former, or upon a communication by him submitting the
matter to the Senate. And we perceive no substantial reason for adding by
construction any such restriction upon the Senate's right to act." (People v.
Shawver, 222 P. 11; see, also, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382,
State v. Williams, 20 S.C. 13; Richardson v. Henderson, 4 Wyo. 535, 35 Pac. 517,
and other cases cited in the Shawver case.)
4. The foregoing goes to show, also, that the question whether the Commission on
Appointments is or is not a continuing body can not affect the determination of this case.
Besides, the constitutional provision making an ad interim appointment, if not disapproved
by the Commission on Appointments, effective only until the next adjournment of
Congress, clearly indicates that such Commission must have an opportunity to approve or
disapprove the appointment and that its inaction, despite such opportunity, at the session
of Congress next following the making of the appointment during which it could have
met, and, probably, did meet must be understood as an expression of unwillingness to
stamp its approval upon the act of the executive. No such opportunity exists when the
outgoing Congress has not held any session, regular or special after the making of the
appointment and before the expiration of the term of said Congress, and the new
Congress has not, as yet, organized itself or even met.
5. The American rule concerning irrevocability of appointments is bolstered up in the
Philippines by Section 4 of Article XII of the Constitution, which provides that - "no of cer
of employee in the Civil Service shall be removed except for cause as provided by law."
(Article VII, Section 4.)
In fact, in his concurring opinion in Eraa vs. Vergel de Dios (85 Phil. 17), our distinguished
Chief Justice pointed out that the revocation of an appointment, if feasible, "should be
communicated to the appointee before the moment he quali ed," and that "any revocation
thereafter, is tantamount to removal and must be judged according to the rules applicable
to the removal" (emphasis ours). In the present case, the revocation of petitioner's
appointment was not communicated to him before he quali ed by taking his oath of
of ce. It is not even claimed that any of the statutory causes for removal of petitioner
herein exists, or that the procedure prescribed for such removal has been complied with.
6. Once an appointee has quali ed, he acquires a legal, not merely equitable right, which is
protected not only by statute, but, also by the Constitution, for it cannot be taken away
from him, either by revocation of the appointment or by removal, except for cause, and
with previous notice and hearing, consistently with said Section 4 of Article XII of our
fundamental law, and with the constitutional requirement of due process (Segovia vs. Noel,
47 Phil., 547; Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See also, People ex rel Ryan v. Green, 58
N. v. 295; People vs. Gardner, 59 Barb. 198; II Lewis Sutherland Statutory Construction, pp.
1161 and 1162, Mechem on Public Of cers, Sec. 389; 22 R.C.L. 377-378; 25 Am. Dec. 690-
691, 703).
7. The case of Tipton vs. Parker (74 S.W., 298) has been cited in support of the theory that
Congress of the Philippines was not in "recess" on December 29, 1961, and that,
accordingly, ad interim appointments could not validly be made in such date. The question
involved in said case was whether a committee of the Senate of Arkansas could be
authorized by the same to function after the adjournment sine die of the regular session of
the state General Assembly. The State Supreme Court considered as decisive authority the
view expressed by Judge Cooley, to the effect that a legislative committee "has no
authority to sit during a recess of a House which appointed him, without its permission to
that effect". The issue thus hinged on the meaning of the term "recess" as used by Judge
Cooley. Resolving this question, said court held that the recess referred to by Judge
Cooley was "only the intermission between the sittings of the same body at its regular or
adjourned session and not to the interval between the nal adjournment of one body and
the convening of another at the next regular session".
In this connection, it should be noted that, as an agency of the Senate, the committee
involved in said case could not operate for its principal beyond the latter's term. Moreover,
under the Constitution of Arkansas, the regular biennial session of the General Assembly
could not exceed 60 days, unless by a vote of 2/3 of the members of each of the two
Houses of the legislative. Inasmuch as the Senate could not, without the concurrence of
the House, directly extend the period of its regular session, neither could it, without such
concurrence, indirectly extend said period, by granting its aforementioned committee the
authority to function beyond said period. As stated by the Court "the committee, being the
mere agency of the body which appointed it, dies when the body itself dies, unless it is
continued by law", which the Senate may not enact without the concurrence of the House.
The decision in said case did not seek to de ne the meaning of the term "recess" as used
in any constitution or statute. It did not even refer to the authority to make appointments
during "recess". It has absolutely no bearing, therefore, on the issue before us.
Upon the other hand, Dr. Jose M. Aruego, a prominent member of the constitutional
convention, says, in his work on "The Framing of the Philippine Constitution" (Vol. I, pp.
434-435), that the draft of the provision on ad interim appointments by the President, as
submitted by the corresponding committee, followed the principles of the Jones Law and
that the recommendation of the committee was readily approved on the oor of the
convention, although the committee on style gave said provision its present phraseology.
Pursuant to the Jones Law, "appointments made while the Senate is not in session shall be
effective either until disapproval or until the next adjournment of the Senate". Hence, the
term "recess" appearing in Section 10(4) of Article VII of our Constitution should be
construed to mean "while Congress is not in session" and this is con rmed by the practice
consistently observed in the Philippines for time immemorial, as well as the as interim
appointment extended by President Macapagal to respondent Castillo.
8. The case of McChesney vs. Sampson (23 S.W. 2d. 584) has, also, been invoked in
support of the proposition that "an ad interim appointment is not complete until the
appointee takes the oath of of ce and actually takes possession of the position or enters
upon the discharge of its duties" and that, before such actual taking of possession, though
after the oath taking, the appointee may be removed without cause.
We have not found in said case anything justifying such claim. The issue in said case was
whether a state governor could recall an uncon rmed appointment of McChesney to the
state text-book commission when there had been no session of the Senate subsequent to
the appointment, and such issue was decided in the negative.
Although, in addition to accepting the appointment, McChesney had quali ed and
exercised the function of the of ce, the decision of the Court clearly indicates that it was
not necessary for him to discharge the duties of the of ce or even to take the oath of
of ce, in order to render his appointment irrevocable. The Court explicitly declared that the
appointment, once "completed by the executive is not subject to reconsideration or recall;"
That the appointment "is complete when the appointing authority has performed the acts
incumbent upon him to accomplish the purpose;" and that in the case of recess
appointments, like that of McChesney," the appointment alone confers upon the appointee
for the time being the right to take and hold the of ce and constitutes the last act
respecting the matter to be performed by the executive power" completing the
appointment and rendering the same irrevocable.
In short, the McChesney case is authority for the petitioner herein.

9. Most, if not all appointments made by the President have two (2) aspects, namely, the
legal and the political. The rst refers to his authority to make the appointments. The
second deals with the wisdom in the exercise of such authority, as well as with its
propriety. Whether a given vacancy or number of vacancies should be lled, or who among
several quali ed person shall be chosen, or whether a given appointment or number of
appointments will favor the political party to whom the power of appointment belongs and
will injure the interest of a rival political party and to what extent, are, to my mind,
essentially and typically political matters. Hence, I believe that the question whether certain
appointments should be sanctioned or turned down by reason of the improper, immoral or
malevolent motives with which said matters were allegedly handled is, likewise, clearly
political, and, as such, its determination belongs, not to the courts of justice (Vera vs.
Avelino, 77 Phil., 192, 205; 16 C.J.S. 689-690; Willoughby on the Constitution, Vol. III 1326-
1327), but to political organ established precisely to check possible abuses in the exercise
of the appointing power the Commission on Appointments.
Indeed, I can hardly conceive of any question more patently and characteristically political
than this one, or more appropriate for determination of said body. Neither the possible or
probable control thereof by members of the Nacionalista Party nor the number of of ces
or appointments involved can affect the nature of the issue. Surely, its political character is
the same whichever political party may have the largest number of votes in the
Commission on Appointments. The big number of said appointments merely tend to make
more manifest the political complexion thereof and its non-justiciable nature.
10. In Osmea vs. Pendatum (L-17144, October 28, 1960), we refused to disturb the action
of the House of Representatives in suspending a member thereof who had made
derogatory imputations against the President of the Philippines upon the ground that
such imputations constituted a breach of the courtesy due to a coordinate branch of the
Government. Yet, in the present case, imputations similarly derogatory to the same branch
of the Government are, in effect, made in the majority resolution.
I cannot see how such imputations can be reconciled with the position taken by this Court
in the Osmea case and in other cases (Barcelona vs. Baker, 5 Phil., 87; Severino vs.
Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612; Alejandrino vs. Quezon, 46
Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L-4638, May 8, 1951) in
which it "fastidiously observed" the theory of separation of powers (Osmea vs. Pendatum,
supra). Thus, in Santos vs. Yatco (55 Off. Gaz. 8641), in which a department head was
sought to be enjoined from electioneering, in view of the explicit provisions of the Civil
Service Act of 1959 (Republic Act No. 2260, section 29), prohibiting all of cers and
employees in the civil service, "whether in the competitive or unclassi ed service," from
engaging directly or indirectly in partisan political activities or taking part in any election
except to vote, we held that the issue therein raised was one of "impropriety as
distinguished from illegality," and that, as such, it "is not justiciable by this Court." In
Mabanag vs. Lopez Vito (78 Phil., 1), we refused to decide, upon the same ground, whether
speci ed numbers of votes constituted three-fourths of all members of each House of
Congress. In Vera vs. Avelino (77 Phil., 192), we not only declared that "the judiciary is not
the repository of remedies for all political or social evils," but, also, quoted with approval
the statements, made in Alejandrino vs. Quezon (46 Phil., 81), to the effect that "the judicial
department has no power to revise even the most arbitrary and unfair action of the
legislative department, or of either House thereof, taken in pursuance of the power
committed exclusively to that department by the Constitution." (Emphasis ours.)
11. In the present case, we have completely reversed our stand on the principle of
separation of powers. We have inquired into the motives of the Executive department in
making the appointments in question, although it is well settled, under the aforementioned
principle, that:
"Generally courts cannot inquire into the motive, policy, wisdom, or expediency of
legislation.
The justice, wisdom, policy, necessity, or expediency of a law which is within its
powers are for the legislature, and are not open to inquiry by the courts, except as
an aid to proper interpretation." (16 C.J.S. 471-478)
If this is true as regards the legislative branch of the government, I can see no valid reason,
and none had been pointed out, why the same norm should not govern our relations, with
the executive department. However, we have not merely disregarded such norm. We are,
also, in an organ of a coordinate, co-equal branch of the Government from acting on the
questioned appointments. What is more, we are virtually assuming in advance that said
body which has not been organized as yet and whose membership is still undetermined
will not act in harmony with the spirit of our Constitution.
12. It is trite to say that certain moral and political aspects of the issue before us cannot
but produce a strong aversion towards the case of petitioner herein and the hundreds of
others appointed under the same conditions as he was. Although members of the bench
must always endeavor to minimize the in uence of emotional factors tending to affect the
objectivity essential to a fair and impartial appraisal of the issues submitted for their
determination, it is only natural and, I venture to add, fortunate (for, otherwise, how could
they hope to do justice to their fellowmen?) that they should basically react as other
members of the human family. This is probably the reason why Justice Douglas of the
Federal Supreme Court of the U.S., said, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688):
"Cases of notorious criminals like cases of small, miserable ones are apt to
make bad law. When guilt permeates a record, even judges sometimes relax and
let the police take shortcuts not sanctioned by constitutional procedures. . . . . The
harm in the given case may seem excusable. But the practices generated by the
precedent have far-reaching consequences that are harmful and injurious beyond
measurements."
Let us hope that no such consequences will ow from the precedent established in this
case.
BARRERA , J., dissenting:
The instant case started with a simple petition for prohibition and mandamus with
preliminary injunction instituted by petitioner Aytona who claims to have been duly
appointed as interim Governor of the Central Bank, against respondent Castillo who,
allegedly accompanied by his correspondent Colonel Gutierrez and a host of heavily armed
Philippine Constabulary Rangers, interfered with and prevented the petitioner in the
discharge of his duties and prerogatives as such Governor of the Central Bank. During the
hearing, however, and immediately thereafter, a great amount of extraneous matter
affecting person not parties to the proceedings has been introduced into the case and a
veritable avalanche of memoranda after memoranda and manifestations after
manifestations swelled the records and helped involve the issues. One among the dozens
who asked to be admitted as amici curiae, even presented an answer in behalf of the
people to support the side of the respondents. Unfortunately, in the confusion, the case of
the immediate parties became obscured by considerations of circumstances and matters
for the with which petitioner and respondents are not responsible and are not directly
connected.
In my opinion, the fundamental questions which this Court is called upon to resolve in the
present case are specifically:
(1) Is the ad-interim appointment of petitioner Aytona valid when extended?
(2) If so, did it automatically lapse with the ending of the term of of ce of the
twelve Congressmen composing one-half of the membership of the Commission
on Appointments?
(3) May this appointment be legally recalled or withdrawn after Aytona has
qualified?
Before entering into the discussion of the "propriety, morality and wisdom" of the
appointment, it is necessary, I believe, that the foregoing legal propositions must rst be
cleared out.
I. The Validity of Aytona's Appointment:
Aytona's ad interim appointment is assailed on the theory that it was not made during a
"recess" of Congress as provided in paragraph 4, Section 10 of Article VII of the
Constitution. It is claimed for the respondents that the word "recess" means "the
intermission between sittings of the same body at its regular or adjourned session, and
not to the interval between the nal adjournment of one body and the convening of another
at the next regular session. When applied to a legislative body, it means a temporary
dismissal, and not an adjournment sine die." In support of this view, counsel cites the case
of Tipton v. Parker, 71 Ark. 193, from which the foregoing quotation was taken.
An examination of this case, however, discloses that it did not refer to the power of the
President to make ad interim appointments. The pronouncement was made in connection
with the interpretation of Section 17, Article 5 of the Constitution of the State of Arkansas.
the case with reference to the legality of the expenses of a committee of the State Senate
authorized by the latter to made certain investigations beyond the duration of the session
of the General Assembly. The court, in declaring the certi cate without sanction of law,
stated:
"The Senate has no power by resolution of its own to extend its session, and
neither did it have power to such separate resolution to continue its committee, a
mere agency of the body, beyond the term of the body itself which created it."
in view of the provisions of the aforementioned Section 17, Article 5 of the state
Constitution prescribing "that the regular biennial session of the Legislature shall not
exceed 60 days, unless by 2/3 vote of the members elected to each house, and section 23
requiring a vote of the majority of each house to enact a law or pass a resolution having
the force and effect of a law". Apparently an opinion of Judge Cooley seemingly to the
contrary was cited to refute this view of the court, and so the decision went on to say:
"Each house, says Judge Cooley, must also be allowed to proceed in its own way
in the collection of such information as may seem important to a proper
discharge of its functions; and whenever it is deemed desirable that witnesses
should be examined, the power and the authority to do so is very properly referred
to a committee, with any such powers short of nal legislative or judicial action
as may seem necessary or expedient in the particular case. Such a committee has
no authority to sit during a recess of the house which has appointed it, without its
permission to that effect. But the house is at liberty to confer such authority if it
sees fit."
It is in this connection and evidently in a desire to explain the opinion of Judge Cooley that
the court made the pronouncement relied upon by respondents, thus:
" . . . . The recess here referred to by Judge Cooley we think should be construed to
mean only the intermission between sittings of the same body at its regular or
adjourned session, and not to the interval between the nal adjournment of one
body and the convening of another at the next regular session. When applied to a
legislative body, it means a temporary dismissal, and not an adjournment sine
die."
The conclusion reached by the court can not be otherwise. The case refers to the powers
of one house of the state Legislature, with the concurrence of the other, to confer authority
upon its own committee to act beyond the duration of the session of the General
Assembly. Certainly, Judge Cooley's view that each house has power to confer authority to
its committee to act during a recess must be understood to exist only during the life of the
house creating the committee. It can not go beyond its own existence, that is, beyond its
adjournment sine die.
But this ruling is no argument that the Executive's power to make during such adjournment
sine die does not exist just because a house of the legislature lacks power to authorize its
committee to act during a defunct body to act beyond its life; the other refers to power of
another authority, the executive, to perform its functions after the expiration of that other
body. Non-existence of the first does not mean non-existence of the other.
It is to be noted that the different counsel advocating the cause of the respondents are not
even agreed in the application of their interpretation of the word "recess". Some of them
argue that the interregnum which they contend is not recess, comprises the entire period
between the adjournment of the 4th Congress in May, 1961 and the opening of the 1st
session of the 5th Congress on January 22, 1962, so that all ad interim appointments
extended during this period are null and void. Others claim that such interregnum is that
period between December 13, 1961, date of adjournment of the last session of the 4th
Congress, and January 22, 1962. It seems the President Macapagal is of this same view
because his administrative Order No. 2 speci cally refers to all appointments made after
December 13, 1961. Still others, at least one, advanced the theory during the oral argument
that the banned period is that between the adjournment of the 4th Congress in May, and
December 30, 1961, excluding therefrom the period between this last date and January 22,
1962. Obviously, this theory was advanced in an effort to lend validity to the appointments
recently made by President Macapagal, for if the entire period between May or December,
1961 to January 22, 1962 is held not a recess, but an adjournment sine die, then all
appointments heretofore made by the present Chief Executive would suffer the same
defect as those extended by former President Garcia. This last argument is unavailing
because it, likewise, is untenable, tested upon the same authority cited by counsel, i.e., that
the term "recess" means "the intermission between sittings of the same body." Since the
5th Congress has not as yet even convened, the period between December 30 and January
22 can not be a recess of the 5th Congress because it, de nitely, is not an intermission
between sittings of the same body.

In the circumstances, it seems it is an over-statement to say that the term "recess has a
de nite legal meaning in the sense attributed to it in the Tipton vs. Parker case. The
confusion in the minds of the several counsels for the respondents as to the application of
the alleged meaning of the term, indicates a belabored effort on their part to impute a
meaning to satisfy their case. Upon the other hand, we nd in "Hinds Precedents of the
House of Representatives" (Vol. 5, pp. 852-853), a legislative interpretation by the United
States Senate made during the discussion of the term "recess of the Senate" in connection
with the President's 1 power to make appointments, as follows:
"The word 'recess' is one of ordinary, not technical, signification, and it is evidently
used in the constitutional provision in its common and popular sense. It means in
Article II, above referred to, precisely what it means in Article III, in which it is again
used. conferring power upon the executive of a State to make temporary
appointment of a Senator, it says:
'And if vacancies happen, by resignation or otherwise, during the

recess of the legislature of any State, the executive thereof may make
temporary appointments until the next meeting of the legislature, which
shall then fill such vacancies.'
"It means just what was meant by it in the Article of Confederation, in which is
found in the following provision:
'The United States in Congress assembled shall have authority to
appoint a committee to sit in the recess of Congress, it be denominated a
committee of the States, and to consist of one delegate from each State.'
"It was evidently intended by the framers of the Constitution that it should mean
something real, not something imaginary' something actual, not something
ctitious. They used the word as the mass of mankind then understood it and
now understand it. It means, in our judgment, in this connection the period of time
when the Senate is not sitting in regular or extraordinary session as a branch of
the Congress, or in extraordinary session for the discharge of executive functions;
when its members owe no duty of attendance; when its Chamber is empty; when,
because of its absence, it cannot receive communications from the President or
participate as a body in making appointments."
The Attorney General of the United States was also of this view when he stated:
"The recess of the Senate during which the President shall have power to ll a
vacancy that may happen, means the period after the nal adjournment of
Congress for the session and before the next session begins; while an
adjournment during a session of Congress means a merely temporary suspension
of business from day to day, or for such brief periods of time as are agreed upon
by the joint action of the two houses. The President is not authorized to appoint
an of cer during the current holiday adjournment of the Senate, which will have
the effect of an appointment made in the recess occurring between two sessions
of the Senate." (President Appointment of Of cers Holiday Recess, 1901, 23
Op. Atty. gen. 599, (U.S. C.A. Const. Art. 2, Sec. 2[2].
It is worthwhile to note that our Constitution in its paragraph 4, Section 10 of Article VII
speaks of "recess" without making any distribution between the sessions of one congress
and the sessions of another. And it is not trite to say that when the law makes no
distinction, no distinction should be made, especially if to do so would result in a strained
interpretation thereof and defeat and evident purpose of the framers of the Constitution
in this instance, to render it certain that at all times there should be, whether the Congress
is in session or not, an of cer for every of ce, entitled to discharge the duties thereof. (5
Hinds, op. cit., p. 853.)
II. Lapsing of Aytona's Appointment:
It is contended for the respondents that since 12 members of the Commission on
appointments ceased to be such upon the expiration of their term of of ce at midnight of
December 29, 1961, the Commission on Appointments likewise cased to exist on the
theory that the creation can not exist beyond the life of its creator at least with respect to
one-half of its members. This seems to stem from the wrong notion that the Commission
on Appointments is a creature of the Congress. This confuses the Commission on
Appointments as a constitutional body with its members. The body continues to exist, but
only its membership changes periodically. When the Constitution provides in Section 13 of
Article 6 thereof that "the Electoral Tribunals and the Commission on Appointments shall
be constituted within 30 days after the senate and the House of Representatives shall have
been organized with the election of their President and Speaker, respectively", it did not
mean that the Senate and the House of Representatives thereby create said bodies, no
more than the President can be said to create the Supreme Court by appointing the
Justices therein. it simply ordained that the Commission be constituted or organized by
electing the members thereof, whose positions have already been created in virtue of
Section 12 of the same Constitution. To hold that the Electoral Tribunals and the
Commissions on Appointments are non-existing during the period from December 30,
1961 to January 22, 1962 (and during the corresponding periods every four years
thereafter) will result in an absurdity and a situation destructive of the normal processes
provided in the Constitution. One of such absurd results would be that no electoral protest
against any elected and proclaimed congressman or senator can be legally led with the
Electoral Tribunals within the period prescribed by their rules, that is, within fteen days
following the proclamation of the results of the election, which period falls within the time
when the Election Tribunals (as is the case of Commission on Appointments) are allegedly
non-existent.
The proceedings in the Constitutional Convention are cited to support the theory that the
Commission on Appointments is not a permanent commission. A review of the records,
however, of that convention reveals that what was intended in the proposed draft was
authorize the Commission on Appointments to hold sessions even when the Congress is
not in session. The mere fact that such a proposal was defeated and, consequently, the
word "permanent" was not adopted in the nal text, does not important that the
Constitution meant to give an off and on existence to the Commission on Appointments
lapsing every four years when the twelve of its members cease to be such. On the contrary,
it seems more logical to hold that the legal existence of the Commission as well as the
Electoral Tribunals continue irrespective of the vacancies that may exist in the
membership thereof. It is for this reasons that the personnel of these bodies do not cease
periodically, but continue to perform their duties in their respective of ces for which they
are legally paid their salaries by the government.
It seems clear, therefore, that the Commission on Appointments did not lapse on
December 29, 1961. Neither did the appointment of Aytona lapse on that date because the
same could not be acted upon by the Commission on Appointments during the recess of
the Congress.
III. May the appointment of Aytona be legally recalled or withdrawn after he has quali ed
for the position to which he was appointed?
Precedents are to the effect that when once an appointment has been extended by the
Chief Executive who, as is provided in our Constitution, has the sole power of appointment
subject only to the consent of the Commission on Appointments, and the appointee has
accepted the appointment, the same becomes complete and the appointing power can
not withdraw it except in cases where the tenure of the appointee is at the Chief
Executive's pleasure or upon grounds justifying removal and after due process. This is not
because the appointment constitutes a contract (for truly a public of ce can not be
subject of any contract), but because of the provisions of the Constitution itself to the
effect that "no of cer or employee in the Civil Service shall be removed or suspended
except for cause as provided by law." If, therefore, the recall or the withdrawn of the
appointment of Aytona was not authorized by law, then his assumption of the functions of
his of ce on January 2, 1962 was clearly within his legal right and the interference of
Castillo, aggravated by the assistance or at least the presence of members of the Armed
Forces, was clearly unlawful.
The foregoing disposes, in my opinion, the legal issues and the rights of the parties in the
present case. But against these, to me, clear mandates of the Constitution and the legal
and judicial precedents, respondents have appealed to this Court for it to exercise "judicial
statesmanship" invoking the spirit of the constitution. It is claimed that there was a
manifest abuse of power by the outgoing President in extending, on the eve of the
expiration of his term, some three hundred and fty ad interim appointments to ll an
equal number of vacancies in the different branches of the government; that no proper
consideration was given of the merits of the appointees, it appearing that in the case of at
least some of the appointees to the judiciary, their assurance of an immediate assumption
of of ce or the taking of oath was made a condition precedent to the appointments, and
that there was a wild scramble in Malacaang among the appointees on the night of
December 29. We are scandalized by this and expect the Court to apply the remedy. What
of the proceedings in Congress during the last day of session when bills after bills are
passed in a manner not too dissimilar to the described scene in Malacaang? Can the
Supreme Court be expected to correct this too by declaring all such laws as invalid just as
we are asked to invalidate these appointments?
Be this as it may, whatever may be our personal views on this matter, I agree with Mr.
Justice Concepcion that not all wrongs or even abuse of power can be corrected by the
exercise of the high prerogatives of the Supreme Court vested in it by the Constitution. As I
take it, the higher and more delicate is the prerogative, the greater should be the degree of
self-restraint in the exercise thereof, lest the ne and tested scale of checks and balances
set up by the Constitution be jarred. In the same manner that we expect circumspection
and care, even double care, on the part of the other two co-equal coordinate departments
of the government, so must we be most cautious and slow in judging the morality,
propriety and good faith involved in the actuations of the other departments in matters
coming within their competence. The remedy, I believe, under the circumstances is with the
Commission on Appointments to which the appointments have been submitted. The more
fact that it is expected that the Commission on Appointments would be controlled by the
party of the outgoing President is immaterial, because legal processes can not be made to
depend upon the fortunes of political parties, for there is still the ultimate remedy by the
people in the exercise of their sovereign right which is the source of all authority. At any
rate, as has already been aptly said: the judiciary is not the repository of remedies for all
political or social evils, and that the judicial department has no power to revise even
arbitrary or unfair action of the other departments taken in pursuance of the power
committed exclusively to those departments by the Constitution.
May I add: all the scandalous circumstances brought to the attention of this Court did not
link the petitioner herein, save for the fact that his appointment was extended on the same
day as those issued under the unusual and irregular circumstance attending the other
appointments. If at all, there is evidence in favor of Aytona to the effect that insofar as he
is concerned, his appointment to the position of Governor of the Central Bank has been
under consideration for a long time and that he is quali ed for the position. It can not,
therefore, be said that with respect to him there was no mature deliberation and due
consideration of his quali cations and of the need of the service. The charge was made
that the position of Governor of the Central Bank has been vacant for several months and
that the president should have lled it earlier. Yet, when the claiming that there was no
immediate need for such action in view of the fact that there was an Acting Governor. That
it was really necessary to ll the position is evidenced by the act of President Macapagal
himself in making his own appointment hardly twenty-four hours after he recalled the
appointment of Aytona.
Summarizing, I would say that all the circumstances cited by the respondents that have
surrounded the issuance of the appointments in question, have to do with the mode or
manner of the exercise of the authority to make the appointments, quite apart from the
existence of the authority itself. The observation of good faith, morality the propriety by
the other two co-equal coordinate departments in the performance of their functions must
be secured by their sense of duty and of cial oath and not by any supervisory power of the
courts. The role of courts in our scheme of government is to interpret the law and render
justice under it. This simply means that whatever may be our own personal feelings as to
the propriety, morality, or wisdom of any of cial act or actuation of a public of cer or any
agency of the government within their respective competence brought to the attention of
the Court for adjudication, they should not be permitted to prevail over clear legal
considerations, for ours is a regime under the Rule of Law.
In view of the foregoing, I am constrained to register my dissent.
Footnotes
1. These positions had been vacant for months.

2. The 4th Congress expired at midnight December 29, 1961.
3. 89 A.L.R., 135 Anno.
PADILLA, J., concurring:
1. Section 3, Article VI.

4. Section 4, Article VII.

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

Midnight Appointments Ruling

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EN BANC

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

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

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

BAUTISTA ANGELO , J., concurring:

CONCEPCION , J., concurring in part and dissenting in part:

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

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

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BARRERA , J., dissenting:

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

1. These positions had been vacant for months.

1. Section 3, Article VI.

4. Section 4, Article VII.

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