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No. L­19313. January 19, 1962.

DOMINADOR R. AYTONA, petitioner, vs. ANDRES V.


CASTILLO, ET AL., respondents.

Political law; Appointing power; Midnight or last minut


appointment; Rule; Exception.—As a rule, once an appointment is
issued, it cannot be reconsidered specially where the appointee
has qualified. On the other hand, the authorities admit of
exceptional circumstances justifying revocation such as when
mass ad­interim 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 existing at the time of
the appointment and the names are to 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.
Same; Same; Malacañang's practice; Reasons for.— is
Malacañang's practice, which is logical, to submit ad­interim
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 qualified are submitted for
confirmation.
Same; Executive department; Care­taker administration;
Extent of authority.—After the proclamation of the election of an
incoming Chief Executive, the outgoing Chief Executive is no
more than a "care­taker" 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.
Same; Same; Same; Filling of vacancies.—The filling up of
vacancies in important positions, if few, and so spaced as to afford
some assurance of deliberate action and careful consideration of
the need for the appointment and the appointee's qualifications
may 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 inau­

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Aytona vs. Castillo

guration of the new President may, with some reason, be regarded


by the latter as an abuse of presidential prerogatives.
Same; Same; Same; Same; Double care necessary.— When the
President makes ad­interim 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.
Same; 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.
Same; Public officers; Appointment; Equitable rights; Case at
bar.—Once the appointee has qualified, 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:

Political law; Ad­interim appointments defined. —Adinterim


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.
Same; Same; 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 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.

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Aytona vs. Castillo

Same; Same; "The next adjournment of Congress" defined.


—Ad­interim 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:

Political law; Ad­interim appointments; Recess defined.—The


term "recess " has a de finite 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.
Same; Ad­interim appointment; When deemed complete body.
—The Commission on Appointments under our constitutional set­
up is not a continuing body but one that co­exists 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.
Same; Ad­interim appointment; When deemed complete.—An
ad­inte rim 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.
Same; Same; Same; Appointee must assume office.—An ad­
interim appointment is not complete until the appointee takes the
oath of office and actually takes possession of the position or
enters upon the discharge of its duties.

CONCEPCION, J., concurring in part and dissenting in


part:

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.
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

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Aytona vs. Castillo

once complete, by the performance of all acts required by law of


the appointing power, is irrevocable.
Same; Same; 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.
Same; Ad­interim appointment; When complete and
irrevocable.—An ad­interim 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.
Same; Same; Same; Where ad­interim must be acted upon by
another agency.—The irrevocability of the ad­interim
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.
Same; Same; 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.
Same; Same; Revocation.—The revocation of an appointment,
if feasible, should be communicated to the appointee before the
moment he qualified. Any revocation thereafter, is tantamount to
removal.
Same; Same; Where appointee has qualified.—Once an
appointee has qualified, 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.
Same; Same; Recess defined.—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
confirmed by the practice consistently observed in the Philippines
for time immemorial.
Same; Appointment; Aspects.—Appointments made by the
President have two (2) aspects, namely, the legal and the political.
The first 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 filled, or who

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Aytona vs. Castillo

among several qualified 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.
Same; Same; 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.
Same; 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:

Political law; Appointments; Recess defined; Distinguished


from adjournment.—Recess means the period after the final
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.
Same; 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 if to do so
would result in a strained interpretation thereof and defeat the
evident purpose of the framers of the Constitution.
Same; Commission on Appointments; Continuing body.— The
Commission on Appointments as a constitutional body continues
to exist but only its membership changes periodically. It is not a
creature of the Congress.
Same; Ad­interim appointment; Does not lapse with end of
term of office of Congressmen in Commission on Appointments.
—An ad­interim appointment does not automatically lapse with
the ending of the term of office of the twelve Congressmen
composing one­half of the membership of the Commission on
Appointments. The Commission is a continuing body.
Same; Same; Can not be revoked once appointee has quatified.
—An ad­interim appointment can not be recalled or

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Aytona vs. Castillo

withdrawn after the appointee has qualified for the position to


which he was appointed.
Same; 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.
Same; Same; 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 official act or
actuation of a public officer or any agency of the government
within their respective competence brought to the attention of the
Court for adjudicaion, they should not be permitted to prevail
over clear legal Considerations, for ours is a regime under the
Rule of Law.

ORIGINAL ACTION in the Supreme Court. Prohibition


and mandamus with preliminary injunction.
The facts are stated in the resolution of the Court.

RESOLUTION

BENGZON, C.J.:

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, President­elect
Diosdado Macapagal assumed office; and on December 31,
1961, he issued Administrative Order No. 2 ) recallin
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 ap­
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Aytona vs. Castillo

pointed Andres V. Castillo as ad interim Governor of the


Central Bank, and the latter qualified immediately.
On January 2, 1962, both appointees exercised the
powers of their office, although Castillo informed Aytona of
his title thereto; and some unpleasantness developed in the
premises of the Central Bank. However, the next day and
thereafter, Aytona was definitely prevented from holding
office in the 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 qualified for the post, and
therefore, the subsequent appointment and qualification 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 Ma pagal;
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 confirmation" ad interim appointments of
assistant director of lands, councilors, mayors, members of
the provincial boards, fiscals, justices of the peace, officers
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 officers, judges, fiscals, 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 confirmation 124 names of persons appointed
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Aytona vs. Castillo

as judges of first instance, members of provincial boards,


and boards of government corporations, fiscals, justices of
the peace, even one associate justice of this Court
occupying position No. 3 6 a nd two assoc iate jus ti ces
Court of Appeals (9 and 10) between an assistant of the
Solicitor­General' s Offic e, and the chai rm an of th of tax
appeals of Pasay City, who in turn are followed by judges of
first 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 fifty (350) "midnight" or
"lastminute" 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 filling
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 last 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 by­passed; and (4) the abnormal conditions
surrounding the appointment and qualifications 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
Malacañan of candidates for positions trying to get their
written appointments or having such appointments
changed to more convenient places, after some last­

VOL. 4, JANUARY 19, 1962 9


Aytona vs. Castillo

minute bargaining. There was unusual hurry in the


issuance of the appointments 9 7 whi ch w ere not cou
through the Department Heads 9 7 a nd in the confus 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 Malacañan's practice—which we
find to be logical—to submi t 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 qualified are submitted for
confirmation. Nevertheless, this time, Malacañan
submitted its appointments on the same day they were
issued; and the Commission was not then in session;
obviously because it foresaw the possibility that the
incoming President would refuse to submit later the
appointees of his predecessor. As a result, as already
adverted to, some persons whose names were submitted for
confirmation had not qualified nor accepted their
appointments. Because of the haste and irregularities,
some judges of first instance qualified for districts wherein
no vacancies existed, because the incumbents had not
qualif ied for other districts to which they had been
supposedly transferred or promoted.
Referring specifically to judges who had not qualified,
the course of conduct adopted by Former Chief Justice
Moran is cited. Being ambassador in Spain and desiring to
return to this 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 newly­elected
President.
Of course, nobody will assert that President Garcia
ceased to be such earlier than at noon of 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 "care­taker" administration. He was
duty

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Aytona vs. Castillo

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. 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 filling up of
vacancies in important positions, if few, and so spaced as to
afford some assurance of deliberate action and careful
consideration of the need for the appointment and the
appointee's qualif ications 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 apparently1
a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, and thereby to
deprive the new administration of an opportunity to make
the corresponding appointments.
Normally, when the President makes appointments with
the consent of the Commission on Appointments, he has
the benefit 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 is2 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 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 conten­

_______________

1 These positions had been vacant for months.


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

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Aytona vs. Castillo

tion 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 "last­minute"
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 qualif
ied. But none of them refer to mass ad interim
appointments (three hundred and fifty), issued in the last
hours of an outgoing Chief Executive, in a setting similar to
that outlined herein. On the other hand, the ­authorities3
admit of exceptional circumstances justifying revocation
and if any circumstances justify revocation, those described
herein should fit the exception.
Incidentally, it should be stated that the underlying
reason for denying the power to revoke after the appointee
has qualified 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 efficiency 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.

_______________

3 89 A. L. R., 135 Anno.

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Aytona vs. Castillo

          Padilla and Bautista Angelo, JJ., concur in a


separate opinion.
     Concepcion, J., concurs in part and dissents in part.
     Barrera, J., dissents.
          Dizon, J., concurs with the opinion of Justice
Padilla.

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 re­stated as they are set forth in
the opinion rendered /for the Court. The question is
whether the appointment of a person to a public office by a
President whose term of office was about to expire or cease
is lawful or does not contravene the Constitution; or, if
lawful after the 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, well­meaning persons that they
were, never foresaw an eventuality such as the one
confronting the Republic. The framers never thought and
anticipated that a citizen elevated by the people to such an
exalted office 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 n o


ix do ubt tha t the Pre sid ent may make the app 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 office to which he had been appointed.

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VOL. 4, JANUARY 19, 1962 13


Aytona vs. Castillo

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 the fourth Congress whose term was to expire on
the 30th of December 1961 and during such session the ad
interim appointments had been confirmed 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
office of Senators shall be six years and shall begin on the1
thirtieth day of December next following their election."
And "The term of office of the Members of the House of
Representatives shall be four years and shall begin on the2
thirtieth day of December next following their election."
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 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

_______________

1 Secti on 3, Article VI.


2 Secti on 6, Article VI.

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Aytona vs. Castillo

or in special session to consider general legislation or3 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
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 x x x shall end at noon on the
thirtieth day of December following the expiration of four
years after (his) election and4
the term of (his) successor
shall begin from such time."
If the ad interim appointments made by the President
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 and 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
had 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 office to which he had been appointed. My vote,
therefore, is for the denial of the petition.

DIZON, J.:

I concur with the foregoing concurring opinion of Mr.


Justice Padilla, the same being based on an additional

_______________

3 Section 9, Article VI.


4 Section 4, Article VII.

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Aytona vs. Castillo
ground justifying denial of the petition under
consideration.

BAUTISTA ANGELO, J., concurring:

In addition to the reasons stated in the resolution adopted


by this Court on January 19, 1962, h i wi sh to expr 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 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." It is clear that these appointments can only be
made during the recess of Congress because they are ad
interim appointments.
The term "recess" has a definite 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 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 final 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 set­up is not 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

16

16 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

continuing body, the House ceases at the end of its fourth


year. It cannot theref ore 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 finally 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 appointment, to be complete, needs to be
submitted to the Commission on Appointments once the
same is constituted. This is reflected 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 office and actually takes
possession of the position or enters upon the discharge of
its duties. The mere taking of the oath of office without
actual assumption of office is not sufficient to constitute the
appointee the actual occupant thereof who may not be
removed therefrom except for cause (McChes­
17
VOL. 4, JANUARY 19, 1962 17
Aytona vs. Castillo

ney 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 becomes permanent and
binding. That case involves a cadastral judge who was
given an ad interim appointment as judge at large. After
assuming the office and discharging his duties, his
appointment was not confirmed. 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
office, but such statement is merely an obiter dictum
because the case could have been decided on the doctrine
that, having accepted an incompatible office, 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 office 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 oath­taking 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. E d., 61, 69, ca nn ot be i nv o precedent, for
there the appointees were merely nominated and their
nominations confirmed by the Commission on
Appointments even if they have later taken their oath of
office. Certainly, they can no longer be deprived of their
appointments for then the executive would be acting in
disregard of the confirming 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, h i am of the opi
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 princi­
18

18 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

ples, 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, h i concu
therefore, in the aforementioned resolution.
However, h i cann ot se e m y way cl ear to subs cr the
observations therein made representing the motives
allegedly underlying petitioner's appointment and that of
many 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 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.

"An appointment to office may be revoked at any time before the


appointment becomes final 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 office is
complete when the last act required of the person or body vested
with the appointing power has been performed. Where by
constitutional, statutory, or other legal provision it is required
that certain steps be taken to make an effective appointment, it
has been held that the appointment becomes complete beyond the
possibility of recall when the last of the prescribed steps is taken,
and that, where no method of appointment is provided, an
appointment does not become effective and beyond recall until the
appointing officer by some act or word evinces a final intent to
vest the appointee with title to the office." (67 C.J.S., pp. 161­162)
"After the act of appointment is complete, the appointing
authority may not revoke its former appointment and make
another. And appointment to office is complete when the last act
required of the person or body vested with the appointing power
has been performed." (56 C.J., p. 954)
"In all jurisdictions where appointment to office is regarded as
an executive function, as here, an appointment to office 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, 36 Ca l. 519, State v. Williams, 222 121 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)

19

VOL. 4, JANUARY 19, 1962 19


Aytona vs. Castillo

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 Scofield vs. Starr (63 A 512).
The first involved a City Charter providing that its
common council shall, in joint convention, appoint a
prosecuting attorney. In such 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 reason 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 first balloting
taken for the election of the city surveyor of Brigeport
resulted in 25 ballots being cast. It was announced that
there was one ballot more than members voting, and that
there were 13 ballots for Scofield, 11 for Starr and one
blank ballot. Scofield 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 cast exceeded the number of persons
voting, the council was justified 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.

20

20 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

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.

x      x      x      x      x      x      x

"Where an appointment subject to confirmation by the senate


is made by a governor during a recess of the senate, x x x the
quest ion ar is es as to w heth er such an app may be reconsidered
and withdrawn by the governor before it is acted upon by the
Senate.

x      x      x      x      x      x      x

"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 confirmed 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 offices, such action by him being taken after the
senate had convened and had taken under advisement the
confirmation of the persons first appointed to the offices, but
before the senate had taken any definite action with regard to
such confirmation, and the senate, confirmed the first 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
'appoint' persons to such offices 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 'appoint' persons
to office, that the act of the governor in making the first
appointments was final and exhausted the power of the governor's
office in that regard unless and until the appointments were
rejected by the senate, and that, therefore, the persons appointed
by the first governo were entitled to the office. In the words of the
court, 'The power of the governor having been exercised, he had
no further control over the respective offices 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

21

VOL. 4, JANUARY 19, 1962 21


Aytona vs. Castillo

provides that the governor shall appoint persons to the office with
the consent of the senate, rather than merely nominate persons
for consideration by the senate, the appointment is final and
conclusive without confirmation. x x x.
"Likewise in McChesney v. Sampson (1930) 232 Ky 395, 2:'
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 final and irrevocable appointment subject only to
rejection by the senate. In support of this result, it was said: 'It is
urged that appointment to the office 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 lo reconsideration or
recall, xxx The fact that the title to the office, and the tenure of
the officer, 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 office, and
constitutes the last act respecting the matter to be performed by the
executive power.'
x      x      x      x      x      x      x      x      x

"In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding


that an appointment made by a governor to fill an office which
had expired during a recess of the legislature was not merely an
appointment to fill a vacancy which would expire at the 'Mid 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 office and
asking his confirmation by the legislature. was unauthorized and
void, it was said that, the power of the executive having been once
exercised, he had no further control over the office 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.
22

22 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castill

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 fill 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 last appointment was confirmed 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 office. 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
office; that a recess appointment once made by "the
executive is not subject to reconsideration or recall, "even
though not as yet confirmed by the Senate, inasmuch as,"
the appointment alone confers upon the appointee for the
time being the right to take and hold the office, and
constitutes the last act respecting the matter to be
performed by the executive power"; 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 confirmation or requested the Senate to act upon
said appointment, the same had been validly confirmed by
said body, for

'The provision as to the office here in question found in the


Constitution does not say that the appointment made b y the
Governor shall be confirmed by the Senate when requested by the
former, or upon a communication by him submitting the matter to
the Senate. And we perceive 110 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 , Wy o. 5 35 , 35 Pac. 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
adinterim appointment, if not disapproved by the Commis­

23

VOL. 4, JANUARY 19, 1962 23


Aytona vs. Castillo

sion 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
3 of Article XII of the Constitution, which provides that 9
"no officer of employee in the Civil Service shall be removed
except for cause as provided by law." (Article VII, Section
4.)
In fact, in his concurring opinion in Eraña vs. Vergel de
Dios (85 Phil., 17), our distinguished Chief Justice pointed
out that the revocation of an appointment, if feasible,
"should be communicate d to the appoi ntee b efo re ment
he qualified," and that "any revocation thereafter, is
tantamount to removal and must be judged according to the
rules applicable to the removal" (italics ours). In the
present case, the revocation of petitioner's appointment
was not communicated to him before he qualified by taking
his oath of office. 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 qualified, 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 , 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
. 11 7, 42 Am. Jur. 887)

24

24 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

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
Officers, Sec. 389; 22 R. C. L. 377­378; 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 final 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 legislature. 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.
25

VOL. 4, JANUARY 19, 1962 25


Aytona vs. Castillo

The decision in said case did not seek to define 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.
434­435), 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 o f lo or of the convent ion, alt
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
confirmed by the practice consistently observed in the
Philippines for time immemorial, as well as the ad 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 office 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 unconfirmed appointment of McChesney to
the state text­book 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 qualified and exercised the function of the
office, the decision of the Court clearly indicates that
26

26 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

it was not necessary o f or him ei th er to dis cha rge th of


the office or even to take the oath of office, in order to
render his appointment irrevocable. The Court explicitly
declared that the appointment, once "completed by the
executive is not subject to reconsideration or recall;" that
the appointment "is complete when the appointing
authority has performed the acts incumbent upon him to
accomplish the purpose;" and that in the case of recess
appointments, like that of McChesney," the appointment
alone confers upon the appointee for the time being the
right to take and hold the office and constitutes the last act
respecting the matter to be performed by the executive
power" completing the appointment and rendering the
same irrevocable.
In short, the McChesney case is authority for the
petitioner herein.
9. Most, if not all appointments made by the President
have two (2) aspects, namely, the legal and the political.
The first 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 filled, or who
among several qualified 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, to my mind,
essentially and typically political matters. Hence, 9 7 belie
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. 689­690;
Willoughby on the Constitution, Vol. III 1326­1327), but to
the political organ established precisely to check possible
abuses in the exercise of the appointing power—t he
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

27

VOL. 4, JANUARY 19, 1962 27


Aytona vs. Castillo
the possible or probable control thereof by members of the
Nacionalista Party nor the number of offices 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 non­justiciable nature.
10. In Osmeña vs. Pendatum (L­17144, October 28,
1960), we refused to disturb the action of the House of
Representatives in suspending a member thereof 9 7 w had
made derogatory imputations against the President of the
Philippines 9 7 up on the gr ound that such im tions
constituted a breach of the courtesy due to a coordinate
branch of the Government. Yet, in the present case,
imputations similarly derogatory to the same branch of the
Government are, in effect, made in the majority resolution.
I cannot see how such imputations can be reconciled
with the position taken by this Court in the Osmeña case
and in other cases (Barcelona vs. Baker, 5 Phil., 87;
Severino vs. Governor­General, 16 Phil., 366; Abueva vs.
Wood, 45 Phil., 612; Alejandrino vs. Quezon, 46 Phil. 85;
Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L­
4638, May 8, 1951) in which it "fastidiously observed" the
theory of separation of powers (Osmeña vs. Pendatum,
supra). Thus, in Santos vs. Yatco (55 Off. Gaz. 8641), in
which a department head was sought to be enjoined from
electioneering, in view of the explicit provision of the Civil
Service Act of 1959 (Republic Act No. 2260, section 29),
prohibiting all officers and employees in the civil service,
"whether in the competitive or classified, or noncompetitive
or unclassified 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 specified numbers of votes
constituted three­fourths of all members of each House of
Congress. In Vera vs. Avelino
28

28 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo
(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 statement, 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." (Italics 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. 471­478)

If this is true as regards the legislative branch of the


government, 9 7 c an se e no valid r eas on, and none
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
effect, restraining the Commission on Appointments—an
organ of a coordinate, co­equal branch of the Govern­ ment
—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 influence of emotional factors
tending to affect the objectivity essential to a fair and
impartial appraisal of the issues submitted for their deter­
29
VOL. 4, JANUARY 19, 1962 29
Aytona vs. Castillo

mination, it is only natural—and , I venture to add,


fortunate (for, otherwise, how could they hope to do justice
to their fellowmen?)—th at 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. (1 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. x x x. The harm in the
given case may seem excusable. But the practices generated by
the precedent have far­reaching consequences that are harmful
and injurious beyond measurement."

Let us hope that no such consequences will flow 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 ad interim Governor of the Central against
respondent Castillo who, allegedly accompanied by his
correspondent Colonel Gutierrez and a host of heavily
armed Philippine Constabulary Rangers, interferred 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 persons 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 and with which petitioner and respondents are not
responsible and are not directly connected.
30

30 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

In my opinion, the fundamental questions which this Court


is called upon to resolve in the present case are specifically:

(1) Is the ad­interim appointment of petitioner Aytona


valid when extended?
(2) If so, did it automatically lapse with the ending of
the term of office of the twelve Congressmen
composing one­half 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, 9
7 believ e, t hat the foreg oing legal propos itio ns mu 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 final 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 ajournment 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 4 ,
of the Constitu ti on of th e State of Ark ansa involved the
validity of the certificate of the auditor with reference to
the legality of the expenses of a committee of the State
Senate authorized by the latter to make certain
investigations beyond the duration of the session of the
General Assembly. The court. in declaring the certificate
without sanction of law, stated:

"The Senate has no power by resolution of its own to extend its


session, and neither did it have power to such separate .

31

VOL. 4, JANUARY 19, 1962 31


Aytona vs. Castillo

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 final
legislative or judicial action as may seem necessary or expedient
in the particular case. Such a committee has no authority to sit
dining 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
prouncement relied upon by respondents, thus:

" x x x. 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 final 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 it? own
existence, that is. beyond its adjournment sine die.

32

32 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

But this ruling is no argument that the Executive's power


to make appointments during such adjournment sine die
does not exist just because a house of the legislature lacks
power to authorize its committee to act during the same
adjournment. One refers to the power of a defunct body to
act beyond its life; the other refers to the power of another
authority, the executive, to perform its functions after the
expiration of that other body. Non­existence of the first
does not mean non­existence 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 that President
Macapagal is of this same view because his administrative
Order No. 2 . specifical ly ref er s t 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 s ittings of the same body," Since the
5th Congress has not as yet even
33

VOL. 4, JANUARY 19, 1962 33


Aytona vs. Castillo

convened, the period between December 30 and January 22


can not be a recess of the 5th Congress because it,
definitely, is not an intermission between sittings of the
same body.
In the circumstances, it seems it is an over­statement to
say that the term "recess has a definite 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 find in "Hinds Precedents of the House of
Representatives" (Vol. 5, pp. 852­853), a legislative
interpretation by the United States Senate made during
the discussion of the term "recess1 of the Senate" in
connection with the President's 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 it 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 fictitious. 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 func­

_______________

1 The power of the U.S. President to make appointments is by and with the
advice and consent of the Senate.

34

34 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

tions; 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 fill a vacancy that may happen, means the period after
the final 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 officer during the current holiday adjournment of
the Senate, which will have the effect of an appointment made in
the recess occuring between two sessions of the Senate."
(President—Appointme nt Officers—Holid ay Rece ss, 1 90 1, 23
Op . At ty. Gen. 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 the
evident purpose of the framers of the Constitution—in t his
insta nc e, to re nder it cert ai n t times there should be,
whether the Congress is in session or not, an officer for
every office, 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 office at midnight
of December 29, 1961, the Commission on Appointments
likewise ceased to exist on the theory that the creation can
not exist beyond the life of its creator at least with respect
to one­half 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
35

VOL. 4, JANUARY 19, 1962 35


Aytona vs. Castillo

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 ate 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
Commission on Appointments are non­existing 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 filed with the
Electoral Tribunals within the period prescribed by their
rules, that is. within fifteen days following the
proclamation of the results of the election, which period
falls within the time when the Electoral Tribunals (as is
the case of Commission on Appointments) are allegedly
non­existent.
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 to 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 final text, does not
import 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

36

36 SUPREME COURT REPORTS ANNOTATED


Aytona vs. Castillo

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
reason that the personnel of these bodies do not cease
periodically, but continue to perform their duties in their
respective offices for which they are legally paid their
salaries by the government.
It seems clear, therefore, that the Commission on
Appointments did not lapse on December 29, 19­61.
Neither did the appointment of Aytona lapse on that date
because the same could not be acted upon by the
Commission on Appointments during the recess of the
Congress.
III. May the appointment of Aytona be legally recalled or
withdrawn after he has qualified for the position to which
he was appointed?
Precedents are to the effect that when once an
appointment has been extended by the Chief Executive
who, as is provided in our Constitution, has the sole power
of appointment subject only to the consent of the
Commission on Appointments, and the appointee has
accepted the appointment, the same becomes complete and
the appointing power can not withdraw it except in cases
where the tenure of the appointee is at the Chief
Executive's pleasure or upon grounds justifying removal
and after due process. This is not because the appointment
constitutes a contract (for truly a public office can not be
subject of any contract), but because of the provisions of the
Constitution itself to the effect that "no officer or employee
in the Civil Service shall be removed or suspended except
for cause as provided by law." If, therefore, the recall or the
withdrawal of the appointment of Aytona was not
authorized by law, then his assumption of the functions of
his office 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
37

VOL. 4, JANUARY 19, 1962 37


Aytona vs. Castillo

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 fifty ad
interim appointments to fill 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 office or the taking of oath was
made a condition precedent to the appointments, and that
there was a wild scramble in Malacañan among the
appointees on the night of December 29. We are
scandalized by this and expect the Court to apply the
remedy. What of the proceedings in Congress during the
last day of session when bills after bills are passed in a
manner not too dissimilar to the described scene in
Malacañang? Can the Supreme Court be expected to
correct this too by declaring all such laws as invalid just as
we are asked to invalidate these appointments?
Be this as it may, whatever may be our personal views
on this matter, h i agr ee w ith Mr. Jus tice Conce pcio 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 9 7 ta ke it, higher and
more delicate is the prerogative, the greater should be the
degree of self­restraint in the exercise thereof, lest the fine
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 co­equal 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, h i believ e, un der
the cir stances is with the Commission on Appointments to
which the appointments have been submitted. The mere
fact that it is expected that the Commission on Appoint
38

38 SUPREME COURT R EPORTS A NNOTATED


Antony vs. Castill

ments 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 t aken in pursuance of the power committed e
xclusively 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 circumstances attending the other appointments.
If al 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 qualified for the
position. It can not, therefore, be said that with re spect t o
him there was no mature deliberation and due
consideration of his qualifications 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 filled it earlier. Yet,
when the President actually filled it as he did, he is
criticized claiming that there was no immediate need for
such action in view of the fact that there was an Acting
Governor. That it was really necessary to fill the position is
evidenced by the act of President Macapagal himself in
making his own appointment hardly twenty­four 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 observance of good faith, morality

39

VOL. 4, JANUARY 19, 1962 39


Aytona vs. Castillo

and propriety by the other two co­equal coordinate


departments in the performance of their functions must be
secured by their sense of duty and official 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 official act or
actuation of a public officer 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, h i am constrai ne d to reg my
dissent.
Action dismissed.

NOTES

When an appointment is deemed complete; Rule; exceptions.


—As a general rule, an appointment once made is
irrevocable and not subject to reconsideration. The rule is
qualified, however, where the assent, confirmation or
approval of some other officer or body is needed before the
appointment may issue and be deemed complete. ln such a
case, the appointment is complete only when such assent or
confirmation is obtained (Mitra v. Subido. L­21691, Sept.
15, 1967, 21 SCRA 127, reiterating Gorospe v. Secre tary of
Public Works, L­11090, Jan. 31, 1959 which held that an
appointment to a position in the civil service made by an
officer duly empowered to make it is not final and complete
until after the Commissioner of Civil Service has certified
that such appointment may be made).
An assignment to a particular station is not necessary to
complete the appointment. The approval thereof by the
Commissioner of Civil Service gives the appointment the
stamp of finality. The subsequent assignment of the
appointees according to the exigencies of the service does
not in any way detract from the perfection attained by the
appointment beforehand. A contrary rule will erase
altogether the demarcation line between appointment and
assignmen
40

40 SUPREME COURT REPORTS ANNOTATED


Gamboa vs. Tan

as two distinct concepts in the law of public officers (Ibañez


a l Ibañ ez v. Commiss io n on Elect ions, L­ 26558, April
27, 1967, 19 SCRA 1002)
Political Question—See Gonzales v. Commission on
Elections, L­28196, Nov. 9, 1967, 21 SCRA 774 and the
annotation on "Judicial Deference to Political Question," 21
SCRA 822.

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