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

In the instant case, the recommendation of the 5. –

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

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

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

L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) |8
 G.R. No. 184219               January 30, 2012
SAMUEL B. ONG, Petitioner, 
vs.
OFFICE OF THE PRESIDENT, ET AL., Respondents.
REYES, J.:  respondent Reynaldo Wycoco Memorandum
The Case
 
Before us is a petition for review [1] on certiorari under Rule
45 of the Rules of Court filed by Samuel B. Ong (Ong) to
assail the Decision[2] rendered by the Court of Appeals (CA)
on August 5, 2008 in CA-G.R. SP No. 88673, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing
premises, the petition for quo
warranto filed in this case is
hereby DENIED.
SO ORDERED.[3]
Ong died on May 22, 2009 during the pendency of the
instant petition.[4] Admittedly, Ong's death rendered the
prayer for reinstatement in the petition for quo warranto as
moot and academic. However, substitution[5] was sought
because in the event that the Court would rule that Ong was
indeed entitled to the position he claimed, backwages
pertaining to him can still be paid to his legal heirs. Per
Resolution[6]issued on January 10, 2011, we granted the
motion for substitution. The deceased petitioner is now
herein substituted by his wife Elizabeth, and children,
Samuel Jr., Elizabeth and Carolyn, all surnamed Ong.
Antecedents Facts
The CA aptly summarized the facts of the case before the
filing of the petition for quo warranto as follows:
The petitioner [Ong] joined the National Bureau
of Investigation (NBI) as a career employee in
1978. He held the position of NBI Director I from
July 14, 1998 to February 23, 1999 and NBI
Director II from February 24, 1998 to September
5, 2001. On September 6, 2001, petitioner was
appointed Director III by the President. His
appointment paper pertinently reads:
xxx
Pursuant to the provisions of existing laws, the
following are hereby appointed to
the NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF JUSTICE co-terminus with
the appointing authority:
 
xxx
 
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) |9
SAMUEL B. ONG - DIRECTOR III
(vice Carlos S. Caabay) [DEPUTY DIRECTOR]
 
xxx
On June 3, 2004, the petitioner received from
Circular No. 02-S.2004 informing him that his
appointment, being co-terminus with the
appointing authority's tenure, would end
effectively at midnight on June 30, 2004 and,
unless a new appointment would be issued in his
favor by the President consistent with her new
tenure effective July 1, 2004, he would be
occcupying his position in a de facto/hold[-]over
status until his replacement would be appointed.
On December 01, 2004, the President appointed
respondent Victor A. Bessat as NBI Director III as
replacement of the petitioner. Consequently,
respondent Wycoco notified the petitioner that,
effective on December 17, 2004, the latter should
cease and desist from performing his functions as
NBI Director III in view of the presidential
appointment of respondent Bessat as petitioner's
replacement. The petitioner received the
aforementioned notice only on January 27, 2005.
[7] 
(underscoring supplied and citations omitted)
On February 22, 2005, Ong filed before the CA a petition
for quo warranto.  He sought for the declaration as null and
void of (a) his removal from the position of NBI Director III;
and (b) his replacement by respondent Victor Bessat
(Bessat). Ong likewise prayed for reinstatement and
backwages.
The CA denied Ong's petition on grounds:
A petition for quo warranto is a proceeding to
determine the right of a person to the use or
exercise of a franchise or office and to oust the
holder from its enjoyment, if his claim is not well-
founded, or if he has forfeited his right to enjoy the
privilege.[8] Where the action is filed by a private
person, in his own name, he must prove that he is
entitled to the controverted position, otherwise,
respondent has a right to the undisturbed
possession of the office.[9]
Section 27 of the Administrative Code of 1987, as
amended, classifies the appointment status of
public officers and employees in the career service
into permanent and temporary. A permanent
appointment shall be issued to a person who meets
all the requirements for the position to which he is
being appointed, including appropriate eligibility
prescribed, in accordance with the provisions of
law, rules and standards promulgated in pursuance
thereof. In the absence of appropriate eligibles and
it becomes necessary in the public interest to fill a
vacancy, a temporary appointment shall be issued
to a person who meets all the requirements for the
position to which he is being appointed except the 
appropriate civil service eligibility; provided, that
such temporary appointment shall not exceed
twelve months, but the appointee may be replaced
sooner if a qualified civil service eligible becomes
available.
x x x In Cuadra v. Cordova,[10] temporary
appointment is defined as one made in an acting
capacity, the essence of which lies in its temporary
character and its terminability at pleasure by the
appointing power. Thus, the temporary appointee
accepts the position with the condition that he shall
surrender the office when called upon to do so by
the appointing authority. The termination of a
temporary appointment may be with or without a
cause since the appointee serves merely at the
pleasure of the appointing authority.
In the career executive service, the acquisition of
security of tenure presupposes a permanent
appointment. As held in General v. Roco,[11] two
requisites must concur in order that an employee in
the career executive service may attain security of
tenure, to wit: 1) CES eligibility[;] and 2)
appointment to the appropriate CES rank.
In the present case, it is undisputed that the
petitioner is a non-CESO eligible. At best, therefore,
his appointment could be regarded only as
temporary and, hence, he has no security of
tenure. Such being the case, his appointment can
be withdrawn at will by the President, who is the
appointing authority in this case, and at a
moment's notice.[12]
 
Moreover, a perusal of the petitioner's appointment
will reveal that his appointment as NBI Director III
is co-terminous with the appointing authority.
Correlatively, his appointment falls under Section
14 of the Omnibus Rules Implementing Book V of
the Revised Administrative Code of 1987 which
provides that:[13]
 
Sec. 14. An appointment may also be co-
terminous which shall be issued to a person
whose entrance and continuity in the service
is based on the trust and confidence of the
appointing authority or that which is subject to
his pleasure, or co-existent with his tenure, or
limited by the duration of project or subject to
the availability of funds.
The co-terminous status may thus be
classified as follows:
 
xxxx
 
(2) Co-terminous with the appointing
authority 
when appointment is co-existent with the
tenure of the appointing authority or at his
pleasure; x x x
 
xxxx
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 10
Thus, although petitioner's appointment is co-
terminous with the tenure of the President, he
nevertheless serves at the pleasure of the President
and his appointment may be recalled anytime. The
case of Mita Pardo de Tavera v. Philippine
Tuberculosis Society, Inc.[14] delineated the nature
of an appointment held at the pleasure of the
appointing power in this wise:
An appointment held at the pleasure of the
appointing power is in essence temporary in
nature. It is co-extensive with the desire of the
Board of Directors. Hence, when the Board opts
to replace the incumbent, technically there is no
removal but only an expiration of term and in an
expiration of term, there is no need of prior
notice, due hearing or sufficient grounds before
the incumbent can be separated from office. The
protection afforded by Section 7.04 of the Code
of By-Laws on Removal [o]f Officers and
Employees, therefore, cannot be claimed by
petitioner.
All told, petitioner's appointment as well as its
consequent termination falls within the ambit of the
discretion bestowed on the appointing authority,
the President. Simply put, his appointment can be
terminated at any time for any cause and without
the need of prior notice or hearing since he can be
removed from his office anytime. His termination
cannot be said to be violative of Section 2(3),
Article IX-B of the 1987 Constitution. When a
temporary appointee is required to relinquish his
office, he is being separated from office because
his term has expired.[15] Starkly put, upon the
appointment of respondent Bessat as his
replacement, his term of office had already expired.
 
Likewise, it is inconsequential that the petitioner
was replaced by another non-CESO eligible,
respondent Besat. In a quo warranto proceeding[,]
the person suing must show that he has a clear
right to the office allegedly held unlawfully by
another. Absent that right, the lack of qualification
or eligibility of the supposed usurper is immaterial.
[16]
 
Indeed, appointment is an essentially discretionary
power and must be performed by the officer in
which it is vested according to his best lights, the
only condition being that the appointee should
possess the qualifications required by law. If he
does, then the appointment cannot be faulted on
the ground that there are others better qualified
who should have been preferred. This is a political
question involving considerations of wisdom which
only the appointing authority can decide.[17]
 
In sum, quo warranto is unavailing in the instant
case, as the 
public office in question has not been usurped,
intruded into or unlawfully held by respondent
Bessat. The petitioner had no legal right over the
disputed office and his cessation from office
 involves no removal but an expiration of his term of
office.[18] 
Hence, the instant petition ascribing to the CA the following
errors:
I. THE CA ERRED WHEN IT SUSTAINED THE VALIDITY OF
THE PETITIONER'S REMOVAL BY
RESPONDENT WYCOCO AS NBI DIRECTOR III (DEPUTY
DIRECTOR).[19]
II. THE CA ERRED IN HOLDING THAT SINCE THE
PETITIONER HELD A CO-TERMINOUS
APPOINTMENT, HE IS TERMINABLE AT THE
PLEASURE OF THE APPOINTING POWER.[20]
 
Citing Ambas v. Buenaseda[21] and Decano v. Edu,[22] the
instant petition emphasizes that the power of removal is
lodged in the appointing authority. Wycoco, and not the
President, issued Memorandum Circular (MC) No. 02-S.2004
informing Ong that his co-terminous appointment as Director
III ended effectively on June 30, 2004. The issuance of MC
No. 02-S.2004 was allegedly motivated by malice and
revenge since Ong led the NBI employees in holding rallies
in July 2003 to publicly denounce Wycoco. Hence, Bessat's
assumption of the position was null and void since it was
technically still occupied by Ong at the time of the former's
appointment.
It is further alleged that it was erroneous for the CA to
equate
appointment co-terminous with the tenure of the appointing
authority with one that is at the pleasure of such appointing
authority.[23] Citing Alba, etc.. v. Evangelista, etcl. ,[24] Ong's
counsel distinguished a term as the time during which the
officer may claim to hold office as of right from a tenure
which represents the term during which the incumbent
actually 
holds the office. Ong's appointment, from which he cannot
be removed without just cause, was co-terminous with the
President's tenure which ended not on June 30, 2004, but
only on June 30, 2010.
 
Section 2(b), Article IX-G of the 1987 Constitution
and Jocom v. Regalado[25] are likewise cited to stress that
government employees, holding both career and non-career
service positions, are entitled to protection from arbitrary
removal or suspension. In the case of Ong, who started his
employment in 1978 and rose from the ranks, it is allegedly
improper for the CA to impliedly infer thatthe President
acted in bad faith by converting his supposed promotional
appointment to one removable at the pleasure of the
appointing authority.
In its Comment[26] to the petition, the Office of the Solicitor
General (OSG) maintains that the replacement of Ong by
Bessat was fair, just and in 
accord with the doctrine enunciated in Aklan College v.
Guarino,[27] and with Sections 13[28]and 14,[29] Rule V, Civil
Service Commission (CSC) Resolution No. 91-1631 issued on
December 27, 1991. Section 13 substantially provides that
only a temporary appointment can be issued to a person
who
 
does not have the appropriate civil service eligibility. Section
14(2), on the other hand, defines a co-terminous
appointment as one co-existent with the tenure of the
appointing authority or at his pleasure. The last paragraph of
Section 14 states that appointments which are co-terminous
with the appointing authority shall not be considered as
permanent.
The OSG also points out that in issuing MC No. 02-
S.2004, Wycoco did not remove Ong as Director III but
merely reminded the latter that after June 30, 2004, his
appointment shall lapse into a de facto/hold-over status
unless he was re-appointed. Ong's colleagues applied for re-
appointment. Bessat was in fact re-appointed as Director II
on August 13, 2004. Subsequently, on December 1, 2004,
the President appointed Bessat as Director III, effectively
replacing Ong.
Further, the OSG claims that when Ong accepted
promotional appointments in the Career Executive Service
(CES) for which he did not have the required eligibility, he
became a temporary employee and had impliedly abandoned
his right to security of tenure.
 
Our Ruling
 
The petition is bereft of merit.
MC No. 02-S.2004 did not remove Ong from the
position of Director 
an  III. Assuming arguendo that it did, the defect was
cured when the President, who was the appointing
authority herself, in whose hands were lodged the
power to remove, 
appointed Bessat, effectively revoking Ong's
appointment.
MC No. 02-S.2004,[30] addressed to Ong, Bessat, Deputy
Director Nestor Mantaring, and Regional Director Edward
Villarta, in part reads:
 
Records indicate your appointment status
as co-terminus with the appointing power's
tenure which ends effectively at midnight
of this day, 30 June 2004.
 
Unless, therefore, a new appointment is
extended to you by Her Excellency GLORIA
MACAPAGAL-ARROYO, consistent with her
new tenure effective 01 July 2004, your
services shall lapse into a de
facto/hold[-]over status, to ensure
continuity of service, until your
replacements are appointed in your stead.
[31]
 
On December 1, 2004, the President appointed Bessat as
Ong's replacement.[32] Bessat was notified on December 17,
2004. Wycoco 
furnished Ong with a Notice,[33] dated December 20, 2004,
informing the latter that he should cease from performing
the functions of Director III, effective December 17, 2004.
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 11
  
It is argued that in the hands of the appointing
authority are lodged the power to remove. Hence, Wycoco
allegedly acted beyond the scope of his authority when he
issued MC No. 02-S.2004.
This Court notes that MC No. 02-S.2004 did not in
effect remove Ong from his post. It merely informed Ong
that records of the NBI showed that his co-terminous
appointment had lapsed into a de facto/hold-over status. It
likewise apprised him of the consequences of the said
status.
Be that as it may, if we were to assume for
argument's sake that Wycoco removed Ong from his position
as Director III by virtue of the 
former's issuance of MC No. 02-S.2004, still, the defect was
cured when the President herself issued Bessat's
appointment on December 1, 2004. The appointing
authority, who in this case was the President, had effectively
revoked Ong's appointment.
 
Ong lacked the CES eligibility required for the
position of Director III and his appointment
was co-terminus with the appointing
authority. His appointment being both
temporary and co-terminous in nature, it can
be revoked by the President even without
cause and at a short notice.
 
This Court likewise finds no error in the CA's ruling that since
Ong held a co-terminous appointment, he was removable at
the pleasure of the 
appointing authority.
It is established that no officer or employee in the Civil
Service shall be removed or suspended except for cause
provided by law.[34] However, this admits of exceptions for it
is likewise settled that the right to security of tenure is not
available to those employees whose appointments are
contractual and co-terminous in nature. [35]
In the case at bar, Ong's appointment as Director
III falls under the classifications provided in (a) Section
14(2) of the Omnibus Rules Implementing Book V of the
Administrative Code, to wit, that which is co-
existent with the tenure of the appointing authority or at his
pleasure; and (b) Sections 13(b) [36] and 14(2)[37] of Rule V,
CSC Resolution No. 91-1631, or that which is both a
temporary and a co-terminous appointment. The
appointment is temporary as Ong did not have the required
CES eligibility.
The case of Amores v. Civil Service Commission, et
al.[38] is instructive anent the nature of temporary
appointments in the CES to which the position of Director III
held by Ong belonged. The Court declared:
 
An appointment is permanent where the
appointee meets all the requirements for the
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 12
position to which he is being appointed, including
the appropriate eligibility prescribed, and it
is  temporary where the appointee meets all the
requirements for the position except only the
appropriate civil service eligibility.
x x x x
 
x x x Verily, it is clear that the possession of the
required CES eligibility is that which will make an
appointment in the career executive service a
permanent one. x x x
Indeed, the law permits, on many occasions, the
appointment of non-CES eligibles to CES positions
in the government in the absence of appropriate
eligibles and when there is necessity in the
interest of public service to fill vacancies in the
government.  But in all such cases, the
appointment is at best merely temporary  as it is
said to be conditioned on the subsequent
obtention of the required CES eligibility. x x x
xxx
Security of tenure in the career executive service,
which presupposes a permanent appointment,
takes place upon passing the CES examinations
administered by the CES Board. x x x
At this juncture, what comes unmistakably clear is
the fact that because petitioner lacked the proper
CES eligibility and therefore had not held the
subject office in a permanent capacity, there
could not have been any violation of petitioners
supposed right to security of tenure inasmuch as
he had never been in possession of the said right
at least during his tenure as Deputy Director for
Hospital Support Services. Hence, no challenge
may be offered against his separation from office
even if it be for no cause and at a moments
notice. Not even his own self-serving claim that
he was competent to continue serving as Deputy
Director may actually and legally give even the
slightest semblance of authority to his thesis that
he should remain in office. Be that as it may, it
bears emphasis that, in any case, the mere fact
that an employee is a CES eligible does not
automatically operate to vest security of tenure
on the appointee inasmuch as the security of
tenure of employees in the career executive
service, except first and second-level employees,
pertains only to rank and not to the office or
position to which they may be appointed.[45]
[39]
 (underscoring supplied and citations omitted)
The Court is categorical in the Amores case that an
appointee without the requisite CES eligibility cannot hold
the position in a permanent capacity. Temporary
appointments are made if only to prevent hiatus in the
government's rendition of public service. However, a
temporary appointee can be removed even without cause
and at a moment's notice. As to those with eligibilities, their
rights to security of tenure pertain to ranks but not to the pleasure. Neither law nor jurisprudence draws distinctions
positions to which they were appointed. between appointments co-existing with the term of the
appointing authority on one hand, and one co-existing with
 
the appointing authority's tenure on the 
Ong never alleged that at any time during which he
held the Director III position, he had acquired the requisite other. In the contrary, under the aforecited rules, tenure and
eligibility. Thus, the right to  term are used rather loosely and interchangeably.
security of tenure did not pertain to him at least relative to
 
the Director III position.
In Ong's case, the issues needed to be disposed of revolve
 
around the concepts of temporary and co-terminous
The next logical query to be resolved then is appointments. The distinctions 
whether or not Ong, as an appointee holding a position co- between term and tenure find no materiality in the instant
terminus with the appointing authority, was entitled to petition. Besides, whether or not the President's term ended
remain as Director III until the end of the President's tenure on June 30, 2004 or her tenure ceased on June 30, 2010,
on June 30, 2010. the fact remains that she appointed Bessat as Director III, in
  effect revoking Ong's temporary and co-terminous
appointment.
We likewise rule in the negative.
 
 
This Court recognizes Ong's lengthy service rendered to the
Both Section 14 of the Omnibus Rules Rules Implementing government and deeply commisserates with his earlier
Book V of the Administrative Code and Section 14 (2) of plight. However, we cannot grant Ong the reliefs he sought
Rule V, CSC Resolution No. 91-1631 define a co-terminous as law and jurisprudence clearly dictate that being a
appointment as one co-existent with the tenure of the temporary and co-terminous appointee, he had no vested
appointing authority or at his pleasure. rights over the position of Director III.
   
In Mita Pardo de Tavera v. Philippine Tuberculosis Society, IN VIEW OF THE FOREGOING, the petition is DENIED. The
Inc.[40] cited by the CA in its decision, we sustained the Decision rendered by the Court of Appeals on August 5,
replacement of an incumbent, who held an appointment at 2008 in CA-G.R. SP No. 88673 is AFFIRMED.
the pleasure of the appointing authority. Such appointment
was in essence temporary in nature. We categorized the  
incumbent's replacement not as removal but rather as an SO ORDERED.
expiration of term and no prior notice, due hearing or cause
were necessary to effect the same. In Decano v. Edu,[41] we
ruled that the acceptance of a 
temporary appointment divests an appointee of the right to
security of tenure against removal without cause. Further,
in Carillo vs. CA,[42] we stated that one who holds a
temporary appointment has no fixed tenure of office; his
employment can be terminated at the pleasure of the
appointing authority, there being no need to show that the
termination is for cause.

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

terminous. The doctrines enunciated in the cases of Mita
Pardo de Tavera, Decano, and Carillo  apply. Hence, no legal
challenge can be properly posed against the President's
appointment of Bessat as Ong's replacement. The CA
correctly ruled that in quo warranto proceedings, the
petitioner must show that he has a clear right to the office
allegedly held unlawfully by another and in the absence of
the said right, the lack of qualification or eligibility of the
supposed usurper is immaterial. Stated differently, where a
non-eligible holds a temporary appointment, his replacement
by another non-eligible is not prohibited. [43]
 
We note that Ong's counsel had painstakingly drawn
distinctions between a term and a tenure. It is argued that
since Ong's appointment was co-terminous with the
appointing authority, it should not had lapsed into a de
facto status but continued until the end of the President's
tenure on June 30, 2010.
 
Under the Omnibus Rules Implementing the
Revised Administrative Code and CSC Resolution No. 91-
1631, a co-terminous appointment is defined as one co-
existing with the tenure of the appointing authority or at his

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

A perusal of petitioners employment contract will reveal

that his employment with CCPAP is qualified by the phrase
unless terminated sooner. Thus, while such employment is
co-terminous with the PAPS project, petitioner nevertheless
serves at the pleasure of the appointing authority as this is
clearly stipulated in his employment contract. We agree with
the appellate courts intepretation of the phrase unless
terminated sooner to mean that his contractual job as
Project Manager IV from March 11, 1996 to January 30,
2000 could end anytime before January 30, 2000 if
terminated by the other contracting party-employer
CCPAP. We quote with approval said courts ruling on the
matter, thus:

xxx. The employment contract is written in plain and

unambiguous language. With petitioner's stature, he
could not have misunderstood it. Petitioner cannot now
renege from the stipulation invoking security of tenure
under the Constitution and the Civil Service Law. The
fact is he belongs to the non-career service whose
appointment is co-terminous, meaning his entrance
and continuity in the service is based on trust and
confidence of the appointing power. [6] (Underscoring
ours)

Granting arguendo that said disputed phrase refers not

to the duration of petitioners employment, but to the project
itself, nevertheless, petitioner was validly terminated for
cause. The records will show that petitioner garnered an
unsatisfactory rating during the probationary period of his
employment.[7] After due notice, he was subsequently
dismissed because of his inability to work with the other staff
members of the project and to participate effectively in
meetings regarding the project, resulting in loss of trust in
him by his superiors. This much can be gleaned from the
Memorandum, dated September 20, 1996, sent by Mr.
Briones to the petitioner, which reads as follows:

This is to confirm my verbal advise to you made last 4

September 1996 regarding your unsatisfactory
performance during the probationary period of your
contractual employment with the CCPAP BOT Center.

As advised, your inability to work with the other staff in the

Center as well as participate in outside meetings are the
main reasons for the rating which have resulted in the loss
of my confidence in your ability to do your job as a
Manager. (Underscoring supplied)

xxx[8]

Finally, we find petitioner's claim that he was deprived

of due process unavailing. The Court of Appeals found that
petitioner was informed of his unsatisfactory performance in

L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 20
 G.R. No. L-65439 November 13, 1985
PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner
vs.
HON. INTERMEDIATE APPELLATE COURT, HON.
FILEM0N FERNANDEZ, JR., HON. ALBINA
MANALODANS as Commissioners of Civil Service
Commission and HERNANI P. ESTEBAN, respondents.
Office of the Legal Officer for petitioner.
GUTIERREZ, JR., J.:
The sole issue raised in this petition is the status of
respondent Hernani Esteban's appointment as Vice-President
for Administration of the Pamantasan ng Lungsod ng Maynila
that is, whether or not he holds the position in a permanent
capacity as to guarantee as security of tenure.
Respondent Esteban asserts that his appointment is
permanent whereas the petitioner maintains its temporary
and contractual nature such that the respondent may be
dismissed at any time even without cause.
Prior to his joining the Pamantasan, Dr. Esteban had been a
permanent employee in the government service for twenty
five (25) years. Until May 20, 1973, he was officially
connected with the Philippine College of Commerce, a state-
owned educational institution as its Vice-President for
Academic Affairs. Shortly before that date, the Board of
Trustees of the College in a bold move to streamline the
college organization resolve to abolish the position of Vice-
President for Academic Affairs. Private respondent was given
the option to continue teaching at the Philippine College of
Commerce which he accepted until his transfer to the
Pamantasan ng Lungsod ng Maynila, upon the invitation of
its president, Dr. Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially extended an ad
interim temporary appointment as Vice-President for
Administration by Dr. Consuelo Blanco. Dr. Esteban received
from the Secretary of Pamantasan a 'Notification of
Confirmation of Temporary Appointment' dated June 28,
1973. His appointment was 'effective May 21, 1973 until
June 30, 1974, unless sooner terminated.' On July 5, 1974,
the Secretary of Pamantasan sent him a 'Notification of
Renewal of Temporary Appointment' indicating that his
appointment was renewed 'effective July 1, 1974 until
August 31, 1974.'
A month later, on August 30, 1974, he received from the
University Secretary another 'notification of renewal of
temporary appointment' informing him that the Board of
Regents, on recommendation of the President of the
University approved the renewal of his appointment
'effective September 1, 1974 until June 30, 1975' with an
increased salary of P17,160 per annum.
On October 15, 1974, incident to a further increase of his
salary, Dr. Esteban was notified that his appointment as
vice-president for administration at a salary of P17,600 per
annum had been renewed effective September 1, 1974 until
June 30, 1975.
On June 26, 1975, he received another 'Notification of
Renewal of Temporary Appointment' as Vice-President for
Administration with at salary of P21,760 per
annum, 'effective July 1, 1975 until June 30, 1976.'
On July 26, 1975, Dr. E qqqsteban discovered that he was
not included in the list of employees recommended for
permanent appointments. He wrote Dr. Consuelo Blanco
requesting the conversion of his temporary appointment to a
permanent one, considering his two and half (2½) years
service.
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 21
On July 26, 1975, Dr. Esteban received an answer to his
request from President Blanco who indicated various reasons
for her not acting favorably on his request.
On August 1, 1975, Dr. Esteban received a 'Notification of
Ad Interim Appointment notifying him that the president of
the university had approved his appointment as Professor III
with a salary of P15,600 per annum 'effective August 1,
1975'. He was further designated as Director of the Institute
of Continuing Education and Community Service with an
honorarium of P5,676 per annum, likewise effective August
1, 1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a
memorandum circular terminating Dr. Esteban's appointment
as Vice-President for Administration effective July 31, 1975.
His appointment dated June 26, 1975 and effective until
June 30, 1976 had been withdrawn before it could be
confirmed by the Pamantasan Board of Regents.
On the same date, August 7, 1975, Dr. Esteban appealed to
the Civil Service Commission for the protection of his tenure
in the Pamantasan .
On October 9,1975, the Civil Service Commission ruled that:
The temporary nature of the appointment
issued to Dr. Esteban as Vice President for
Administration is conceded. Such being
the Case, his services may be terminated
at any time with or without request that
he be extended permanent appointment
,or that his temporary appointment be
converted into permanent one, it may be
stated that the issuance of such
appointment is addressed to the sound
discretion of the appointing official.
Dr. Esteban flied a motion for the reconsideration of that
ruling. On January 14, 1976, the Civil Service Commission
ruled favorably on Dr. Esteban's motion. It stated that he
was fully qualified for the position of Vice-President for
Administration and certified him "for appointment therein
under permanent status." The Commission stated:
In view thereof, and in the absence of any
apparent justifiable reason why Dr.
Esteban should remian under temporary
status for the length of time prior to the
withdrawal of his appointment as Vice
President for Administration in that
University, and as it further appears that
he is fully qualified for the position in
question in view of his extensive
experience in the fields of public
administration and management, this
Commission hereby certifies him for
appointment therein under permanent
status.
The Pamantasan, in turn, asked for the reconsideration of
that ruling.
The Commission, in an undated Resolution No. 75, Series of
1976, came out with a statement which confused more than
it clarified. It stated that its certification should not be
interpreted as directing the reinstatement of Dr. Esteban
because 'it was never intended to be so
On May 28, 1976 Esteban asked the commission to
reconsider Resolution No. 75, Series of 1976. He also asked
for the payment of the salaries and allowances due him as of
September 1975, which the Pamantasan had withheld. His
request was denied by the commission in its undated
resolution No. 158, Series of 1976.
On September 15, 1976 Esteban reiterated his request for
payment of his salaries.
On September 20, 1976, he asked for a review of the
Pamantasan's decision to terminate his appointment as Vice-
President for Administration.
On December 1, 1976, his request for payment of his
salaries was referred by the Commission to the treasurer of
the Pamantasan.
On July 6, 1977, the Commission again modified its earlier
resolution in as case. It ruled that Dr. Consuelo Blanco, had
no authority to extend to Dr. Esteban an ad
interim  appointment as Vice President for Administration as
only the Board of Regents was empowered to do that under
Article 55 of the University Charter (Rep. Act 4196).
However, it ruled that, as a de facto  officer, he was entitled
to be paid the salary of that position.
Dr. Esteban and the Pamantasan filed motions for
reconsideration of that ruling prompting the Commission to
order them to submit "all papers and documents pertinent to
that case."
On June 6, 1978, Presidential Decree No.1409 was issued
creating a Merits System Board in the Civil Service
Commission to hear and decide cases brought before it on
appeal by officers and employees who feel aggrieved by the
determination of officials on personnel matters.
The Board required the Pamantasan to submit its complete
records on the appointment and termination of Dr. Esteban
as vice-president for administration.
While the records officer of the Pamantasan submitted
copies of the notices sent to Esteban regarding his
appointment as vice-president for administration, he did not
submit a copy of the Board's Resolution No. 485 passed
June 20, 1973 confirming the ad interim  appointments of
several academic and non-academic personnel of said
university among which was that of Dr. Hernani Esteban
"effective May 21, 1973." He produced a copy of the
memorandum circular dated August 7, 1915 of the President
of the Pamantasan terminating Dr. Esteban's service as of
July 31, 1975.
In Resolution No. 597 dated November 11, 1980, the
Commissioner directed the Pamantasan to submit any
document or documents directly or actually showing that Dr.
Hernani Esteban was appointed vice-president for
administration of the Pamantasan in a permanent capacity.
On January 15, 1981, the Pamantasan by 2nd Indorsement,
despite the existence of Board Resolution No. 485, replied
that "we cannot find any document showing that Dr.
Esteban was appointed ... in a permanent capacity.
In view of the Pamantasan's failure to produce the minutes
of the regular Board of Regents meeting on June 20, 1973
when Esteban's appointment was approved the Commission
in its Resolution No. 81-279 dated March 5, 1981, concluded
that there is truth to the claim of Dr. Esteban that his
appointment as Vice-President for Administration of the
Pamantasan was approved as permanent. It
cited Government of the Philippine Islands vs. Martinez,  (44
Phil. 817) that when a party has it in his possession or
power to produce the best evidence of which the case in its
nature is susceptible and withholds it, the fair presumption is
that the evidence is withheld for some sinister motive and
that its production would thwart his evil or fraudulent
purpose.
The Commission ruled that "Dr. Hernani Esteban had been
appointed Vice-President for Administration of Pamantasan
with permanent status and that the temporary appointment
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 22
issued to him did not alter his permanent status as he had
'already acquired a vested right as well as the right to
security of tenure', that he cannot unceremoniously removed
therefrom, nor can the status of his appointment be
changed without cause, as provided by law and after due
process." The Commission held that the termination of his
services was obviously illegal. It directed his immediate
reinstatement to the position of Vice-President for
Administration of Pamantasan and the payment of his back
salaries, allowances and other benefits which he failed to
receive from the time he was separated therefrom.
The Pamantasan filed a motion for reconsideration of that
resolution. It also submitted for the first time a copy of
Resolution No. 485.
The Commission, in Resolution No. 71-510 dated April 23,
1981 chided the Pamantasan for having suppressed said
piece of evidence from which "the intention of, or the
accurate action taken by PLM Board of Regents on Dr.
Esteban's appointment in question, may be determined."
Following the decision of the Supreme Court in the case
of Summers v. Ozaeta,  (81 Phil. 760), the Commission
denied the Pamantasan's motion for reconsideration and
ruled that "Upon confirmation of the Board of Regents of
the ad interim appointment of Dr. Esteban the same became
permanent."
Upon getting this ruling, the Pamantasan filed a petition
for certiorari against Dr. Esteban and Civil Service
Commissionssioners Filemon Fernandez, Jr. and Albina
Manalo Dans. The petition was docketed as Civil Case No.
139840 of the Court of First Instance of Manila, Branch XIII.
On January 8, 1982, the trial court rendered a decision
reversing the Commission's Resolution No. 81-279 and
adopted the earlier Commission Resolution dated July 6,
1977 holding that Private respondent Dr. Esteban's
appointment was invalid, though he may be considered as
a de facto vice-president of the University up to October 9,
1975, the date when the Commission ruled that his
appointment was temporary and could be terminated at any
time.
The private respondent appealed to the Intermediate
Appellate Court.
On September 26, 1983. the respondent Intermediate
Appellate Court rendered a decision reversing the trial
court's decision. The dispositive portion of the appellate
decision reads:
Wherefore, the appealed decision is
hereby revised and set aside. The
Pamantasan's petition for certiorari  is
denied. Resolution No 81-279 dated March
5, 1981, as well as Resolution No. 81-510
dated April 23, 1981, of the respondent
Civil Service Commission, declaring as
permanent the appointment of the
appellant Dr. Hernani Esteban as vice-
president for administration of the
university under the Board of Regents'
Resolution No. 485 dated June 20, 1973,
and ordering his immediate reinstatement
to that position with back salaries,
allowances and other benefits, is affirmed,
provided he has not yet reached the age
of compulsory retirement from the
government service; otherwise, he shall be
entitled to back salaries, allowances and
other benefits only up to the time he
should handle been reared from the said
position.
From the decision of the Intermediate Appellate Court and
after its motion for reconsideration had been denied
petitioner Pamantasan ng Lungsod ng Maynila filed the
present petition, now the subject of this review.
We find no error in the pronouncements of the Intermediate
Appellate Court. We rule in favor of the respondents.
From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the situation.
Private respondent had been extended several "ad-interim"
appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the literal
translation of the word "ad interim" which creates such
belief. The term is defined by Black to mean "in the
meantime" or for the time being, Thus, an officer ad
interim is one appointed to fill a vacancy, or to discharge the
duties of the office during the absence or temporary
incapacity of its regular incumbent (Black's Law Dictionary,
Revised Fourth Edition, 1978). But such is not the meaning
nor the use intended in the context of Philippine law. In
referring to Dr. Esteban's appointments, the term is not
descriptive of the nature of the appointments given to him.
Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of
the Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the University Charter
with the power of appointment, is unable to act. Thus, we
held in Summers v. Ozaeta (81 Phil. 760):
... an ad interim appointment is one made
in pursuance of paragraph (4), section 10,
Article VII of the Constitution, which
provides that the President shall have the
power to make appointments during the
recess of the Congress, but such
appointments shall be effective only until
disapproval by the Commission on
Appointments or until the next
adjournment of the Congress.' lt is an
appointment permanent in nature, and the
circumstance that it is subject to
confirmation by the Commission on
Appointments does not alter its permanent
character. An ad interim  appointment is
disapproved certainly for a reason other
than that its provisional period has
expired. Said appointment is of course
distinguishable from an 'acting'
appointment which is merely temporary,
good until another permanent
appointment is issued.
Not only is the appointment in question an ad
interim appointment, but the same is also a confirmed ad
interimappointment. In its Resolution No. 485, dated June
20, 1973, the Pamantasan Board of Regents verified
respondent Esteban's appointment without condition nor
limitation as to tenure. As of that moment, it became a
regular and permanent appointment.
In other words, if the Board of Regents is in session, the
Pamantasan President merely nominates while the Board
issues the appointment. But when the Board is not in
session, the President is authorized to issue ad
interimappointments. Such appointments are permanent but
their terms are only until the Board disapproves them. If
confirmed, the appointee's term is converted into the regular
term inherent in the position.
Petitioner centers its arguments and tries to fix the attention
of the court to the fact that all notices of appointments,
renewals, and confirmation thereof all declare the same to
be temporary, carrying fixed commencement and
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 23
termination dates, "unless sooner terminated." As expressed
by public respondent, "... This stubborn insistence is
anchored on the notifications of temporary appointment sent
to private respondent Esteban by the Secretary of
Pamantasan. However, this insistence deliberately ignores ...
Resolution No. 485 dated June 20, 1973 of the Board of
Regents ...". And correctly so argued. "In case of conflict
between a notification issued by the Secretary of the
University which is supposed to reflect the true content of a
Board Resolution and the Resolution itself of said Board of
Regents of said University, the latter is controlling for
obvious reasons. The Secretary of the University has no
authority to alter or add something which is not provided for
in the Resolution of the Board of Regents ...". Thus,
respondent Intermediate Appellate Court held:
The permanent nature of appellant's
appointment was not altered or diminished
by the misleading 'notifications' which
were sent to him by the secretary of the
university president, referring to his
appointment as 'temporary', nor by his
uninformed acceptance thereof without
knowledge of the true contents of
Resolution No. 485 which the university
president appears to have studiously
suppressed.
There is nothing in the Pamantasan Board of Regents'
Resolution No. 485 which suggests that respondent
Esteban's appointment was temporary. The Board's action
was to confirm or reject an existing ad interimappointment.
If respondent's appointment was intended to be temporary,
it should have been expressly stated. It cannot be made to
rest on inconclusive evidence, specially because a temporary
appointment divests the temporary appointee of the
constitutional security of tenure against removal without
cause even if he is a civil service eligible." (Tolentino v. de
Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA
1).
Further supporting private respondent's stand is the list of
permanent personnel which was submitted to the
Commission by the university president herself on March 3,
1975 for recognition of their permanent status by the
Commission. The appellant's name was the first in that list
(Exhibit 8-B). The permanent status of private respondent's
appointment as Vice-President for Administration at
Pamantasan was recognized by the Civil Service Commission
in its lst Indorsement dated April 18, 1975 upon the request
of petitioner. This fact is borne out by the records and the
evidence and found as such by the Intermediate Appellate
Court, the Civil Service Commission as well as the Court of
First Instance.
From the foregoing, there appears an intention to deprive
private respondent of his rights as a permanent appointee.
With strained relations and differences in professional
opinion between the private respondent and the
Pamantasan President, Dr. Esteban was led to believe that
his services were terminable at pleasure.
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the
necessary qualifications and eligibilities. lt is a prerogative of
the appointing power that may be availed of without liability,
provided however, that it is exercised in good faith for the
advancement of the employer's interest and not for the
purpose of defeating or circumventing the rights of the
employees under special laws or under valid agreements,
and provided further, that such prerogatives are not
exercised in a malicious, harsh, oppressive, vindictive or WHEREFORE, the petition for review on certiorari is hereby
wanton manner, or out of malice or spite (Government DISMISSED for lack of merit. The decision appealed from is
Service and Insurance System v. Ayroso 96 SCRA 213). The affirmed subject to the modification in the payment of back
general rule is that the power of appointment must remain salaries as stated above.
unhampered by judicial intervention. However, when the law
SO ORDERED.
is violated or when there is grave abuse of discretion, we
have to step in. Otherwise the situation aptly described by
newspaperman Jesus Bigornia would exist as he had written:
... With the sword of Damocles hanging
over the heads of faculty members, the
university has spawned a meek, spineless,
even subservient corps of professors and
instructors. (Newsman's Notes, Bulletin
Today, January 23, 1976).
We cannot also sanction the termination of private
respondent's services by petitioner. With his appointment
now settled as permanent., the Civil Service law and the
Constitution guarantee private respondent's security of
tenure as 'No officer or employe in the Civil Service shall be
suspended or dismissed except for cause as provided by
law" (Section 3, Article XII, the 1973 Philippine Constitution).
Petitioner has failed to substantiate its allegations of
incompetence against respondent Esteban whose record of
government service appears quite impressive. Esteban was
not dimissed for cause after proper proceedings. His
appointment was terminated on the ground that it was
temporary.
The intermediate Appellate Court ordered the payment of
full back salaries to Dr. Esteban provided he has not reached
the age of compulsory retirement from the government
service.
It is not clear from the records as to when Dr. Esteban
actually ceased working for Pamantasan. Under the law, he
is entitled to full pay, allowances, and other benefits during
the period that he was actually reporting for work and
rendering services in whatever capacity, whether teaching,
research or administration. As of backwages, the amount is
generally based on the equivalent of three years' earnings
(Philippine Airlines, Inc. v. National Labor Relations
Commission, 126 SCRA 223; Insular Life Assurance Co., Ltd.
v. National Labor Relations Commission, 135 SCRA 697). In
line with the policy adopted by this Court to do away with
the attendant delay in awarding backwages because of the
extended hearings necessary to prove the earnings,
elsewhere of each and every employee (Philippine Airlines,
Inc. v. National Labor Relations Commission, supra, citing
Mercury Drug Co., Inc. v. Court of Industrial Relations, 56
SCRA 694), the formula for computing the same calls for
fixing the award of backwages to three years. However, in
Dy Keh Beng v. International Labor and Marine Union, 90
SCRA 162, citing Mercury Drug Co., et al. v. Court of
Industrial Relations, 56 SCRA 694, 712), we held the amount
of backwages to be "subject to deduction whre there are
mitigating circumstances in favor of the employer, but
subject to increase whree there are aggravating
circumstances. (Tupas Local Chapter No. 979, et al. v.
National Labor Relations Commission, et al., G. R. No.
60532-33, November 5,\1985; Progressive Development
Corporation v. Progressive Employees' Union, 80 SCRA 434.)
Considering that in the case at bar, more than ten (10) years
have elpased from the date respondent Esteban as to the
true nature of his appointment and "studiously suppressing"
material data to effectively deprive the latter of his rights as
a permanent employee, we find an award of five (5) years
backpay to respondent Dr. Esteban just and equitable under
the circumstances, assuming he has not reached retirement
age in the meantime.

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

L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 40
 [G.R. No. 135805. April 29, 1999]
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO
O. DACOYCOY, respondent.
DECISION
PARDO, J.:
The case before us is an
appeal via certiorari interposed by the Civil Service
Commission from a decision of the Court of Appeals ruling
that respondent Pedro O. Dacoycoy was not guilty of
nepotism and declaring null and void the Civil Service
Commissions resolution dismissing him from the service as
Vocational School Administrator, Balicuatro College of Arts
and Trade, Allen, Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a Citizens
Crime Watch Vice-President, Allen Chapter, Northern Samar,
filed with the Civil Service Commission, Quezon City, a
complaint against Pedro O. Dacoycoy, for habitual
drunkenness, misconduct and nepotism.[1]
After the fact-finding investigation, the Civil Service
Regional Office No. 8, Tacloban City, found a prima
facie case against respondent, and, on March 5, 1996, issued
the corresponding formal charge against him. [2] Accordingly,
the Civil Service Commission conducted a formal
investigation, and, on January 28, 1997, the Civil Service
Commission promulgated its resolution finding no substantial
evidence to support the charge of habitual drunkenness and
misconduct. However, the Civil Service Commission found
respondent Pedro O. Dacoycoy guilty of nepotism on two
counts as a result of the appointment of his two sons, Rito
and Ped Dacoycoy, as driver and utility worker, respectively,
and their assignment under his immediate supervision and
control as the Vocational School Administrator Balicuatro
College of Arts and Trades, and imposed on him the penalty
of dismissal from the service.[3]
On February 25, 1997, respondent Dacoycoy filed a
motion for reconsideration; [4] however, on May 20, 1997, the
Civil Service Commission denied the motion.[5]
On July 18, 1997, respondent Dacoycoy filed with the
Court of Appeals a special civil action for certiorari with
preliminary injunction[6] to set aside the Civil Service
Commissions resolutions.
On July 29, 1998, the Court of Appeals promulgated its
decision reversing and setting aside the decision of the Civil
Service Commission, ruling that respondent did not appoint
or recommend his two sons Rito and Ped, and, hence, was
not guilty of nepotism. The Court further held that it is the
person who recommends or appoints who should be
sanctioned, as it is he who performs the prohibited act.[7]
Hence, this appeal.
On November 17, 1998, we required respondent to
comment on the petition within ten (10) days from notice.
[8]
 On December 11, 1998, respondent filed his comment
We give due course to the petition.
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 41
The basic issue raised is the scope of the ban on
nepotism.
We agree with the Civil Service Commission that
respondent Pedro O. Dacoycoy was guilty of nepotism and
correctly meted out the penalty of dismissal from the
service.
The law defines nepotism[9] as follows:
Sec. 59. Nepotism. (1) All appointments to the national,
provincial, city and municipal governments or in any branch
or instrumentality thereof, including government owned or
controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the
bureau or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.
As used in this Section, the word relative and members of
the family referred to are those related within the third
degree either of consanguinity or of affinity.
(2) The following are exempted from the operations of the
rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of
the Armed Forces of the Philippines: Provided, however,
That in each particular instance full report of such
appointment shall be made to the Commission.
Under the definition of nepotism, one is guilty of
nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of
any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over
the appointee.
Clearly, there are four situations covered. In the last
two mentioned situations, it is immaterial who the appointing
or recommending authority is. To constitute a violation of
the law, it suffices that an appointment is extended or issued
in favor of a relative within the third civil degree of
consanguinity or affinity of the chief of the bureau or office,
or the person exercising immediate supervision over the
appointee.
Respondent Dacoycoy is the Vocational School
Administrator, Balicuatro College of Arts and Trades, Allen,
Northern Samar. It is true that he did not appoint or
recommend his two sons to the positions of driver and utility
worker in the Balicuatro College of Arts and Trades. In fact,
it was Mr. Jaime Daclag, Head of the Vocational Department
of the BCAT, who recommended the appointment of
Rito. Mr. Daclag's authority to recommend the appointment
of first level positions such as watchmen, security guards,
drivers, utility workers, and casuals and emergency laborers
for short durations of three to six months was recommended
by respondent Dacoycoy and approved by DECS Regional
Director Eladio C. Dioko, with the provision that such
positions shall be under Mr. Daclags immediate
supervision. On July 1, 1992, Atty. Victorino B. Tirol II,
Director III, DECS Regional Office VIII, Palo, Leyte,
appointed Rito Dacoycoy driver of the school. On January 3,
1993, Mr. Daclag also appointed Ped Dacoycoy casual utility
worker.However, it was respondent Dacoycoy who certified
that funds are available for the proposed appointment of
Rito Dacoycoy and even rated his performance as very
satisfactory. On the other hand, his son Ped stated in his
position description form that his father was his next higher
supervisor. The circumvention of the ban on nepotism is
quite obvious. Unquestionably, Mr. Daclag was a subordinate
of respondent Pedro O. Dacoycoy, who was the school
administrator. He authorized Mr. Daclag to recommend the
appointment of first level employees under his immediate
supervision. Then Mr. Daclag recommended the appointment
of respondents two sons and placed them under
respondents immediate supervision serving as driver and
utility worker of the school. Both positions are career
positions.
To our mind, the unseen but obvious hand of
respondent Dacoycoy was behind the appointing or
recommending authority in the appointment of his two
sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the
question of the party adversely affected who may take an
appeal from an adverse decision of the appellate court in an
administrative civil service disciplinary case. There is no
question that respondent Dacoycoy may appeal to the Court
of Appeals from the decision of the Civil Service Commission
adverse to him.[10] He was the respondent official meted out
the penalty of dismissal from the service. On appeal to the
Court of Appeals, the court required the petitioner therein,
here respondent Dacoycoy, to implead the Civil Service
Commission as public respondent [11] as the government
agency tasked with the duty to enforce the constitutional
and statutory provisions on the civil service.[12]
Subsequently, the Court of Appeals reversed the
decision of the Civil Service Commission and held respondent
not guilty of nepotism. Who now may appeal the decision of
the Court of Appeals to the Supreme Court? Certainly not the
respondent, who was declared not guilty of the charge. Nor
the complainant George P. Suan, who was merely a witness
for the government.[13] Consequently, the Civil Service
Commission has become the party adversely affected by
such ruling, which seriously prejudices the civil service
system. Hence, as an aggrieved party, it may appeal the
decision of the Court of Appeals to the Supreme Court. [14] By
this ruling, we now expressly abandon and overrule extant
jurisprudence that the phrase party adversely affected by the
decision refers to the government employee against whom
the administrative case is filed for the purpose of disciplinary
action which may take the form of suspension, demotion in
rank or salary, transfer, removal or dismissal from
office[15] and not included are cases where the penalty
imposed is suspension for not more then thirty (30) days or
fine in an amount not exceeding thirty days salary [16] or
when the respondent is exonerated of the charges, there is
no occasion for appeal.[17] In other words, we overrule prior
decisions holding that the Civil Service Law does not
contemplate a review of decisions exonerating officers or
employees from administrative charges enunciated in
Paredes v. Civil Service Commission; [18] Mendez v. Civil
Service Commission;[19] Magpale v. Civil Service Commission;
[20]
 Navarro v. Civil Service Commission and Export
Processing Zone Authority[21] and more recently Del Castillo
v. Civil Service Commission[22]
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 42
The Court of Appeals reliance on Debulgado vs. Civil
Service Commission,[23] to support its ruling is misplaced. The
issues in Debulgado are whether a promotional appointment
is covered by the prohibition against nepotism or the
prohibition applies only to original appointments to the civil
service, and whether the Commission had gravely abused its
discretion in recalling and disapproving the promotional
appointment given to petitioner after the Commission had
earlier approved that appointment. Debulgado never even
impliedly limited the coverage of the ban on nepotism to
only the appointing or recommending authority for
appointing a relative. Precisely, in Debulgado, the Court
emphasized that Section 59 means exactly what it says in
plain and ordinary language: x x x The public policy
embodied in Section 59 is clearly fundamental in importance,
and the Court had neither authority nor inclination to dilute
that important public policy by introducing a qualification
here or a distinction there.[24]
Nepotism is one pernicious evil impeding the civil
service and the efficiency of its personnel. In Debulgado, we
stressed that [T]the basic purpose or objective of the
prohibition against nepotism also strongly indicates that the
prohibition was intended to be a comprehensive one. [25] The
Court was unwilling to restrict and limit the scope of the
prohibition which is textually very broad and comprehensive.
[26]
 If not within the exceptions, it is a form of corruption that
must be nipped in the bud or bated whenever or wherever it
raises its ugly head. As we said in an earlier case what we
need now is not only to punish the wrongdoers or reward
the outstanding civil servants, but also to plug the hidden
gaps and potholes of corruption as well as to insist on strict
compliance with existing legal procedures in order to abate
any occasion for graft or circumvention of the law.[27]
WHEREFORE, the Court hereby GRANTS the petition
and REVERSES the decision of the Court of Appeals in CA-
G.R. SP No. 44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS the
resolutions of the Civil Service Commission dated January
28, 1998 and September 30, 1998, dismissing respondent
Pedro O. Dacoycoy from the service.
No costs.
SO ORDERED.
 CHAVEZ VS. RONIDEL promotional appointments in favor of Diaz and respondent,
respectively, to the two DMO V positions. Respondent took
GR 180941
her oath and assumed her new position on the date of her
  appointment.[6]
NACHURA, J.:  
  Meanwhile, on February 19, 2001, petitioner Percival C.
Before this Court is a petition for review on certiorari under Chavez was appointed as the new Chairperson and Chief
Rule 45 of the Rules of Court, assailing the Court of Appeals Executive Officer (CEO) of PCUP, succeeding
(CA) Decision[1] dated August 8, 2007 and its Gasgonia. However, petitioner took his oath and assumed
Resolution[2] dated December 17, 2007 in CA-G.R. SP No. office only on February 26, 2001. [7] On March 9, 2001,
89024. petitioner issued a Memorandum [8] to Ms. Susan Gapac
(Gapac) of the PCUP Human Resources Department (HRD)
  instructing her to stop the processing of respondents
The factual and procedural antecedents follow: appointment papers until such time that an assessment
thereon would be officially released by the office of
  petitioner. Petitioner, in effect, sought to recall and
Respondent Lourdes R. Ronidel was an employee of the invalidate respondents appointment on the following
Presidential Commission for the Urban Poor (PCUP), grounds:
occupying the position of Development Management Officer  
(DMO) III. On May 25, 2000, she applied for promotion to
one of the two vacant positions of DMO V. 1.      That respondent did not meet the
experience requirement for the
  contested position;
The minimum qualification standards for DMO V are: 2.      That the authority of Gasgonia as
  PCUP Chairman ceased when the
president appointed petitioner to the
Education: Masteral Degree post on February 19, 2001;
Experience: 4 years in position/s involving 3.      That respondents appointment as
management and supervision DMO V was a midnight appointment,
Training: 24 hours of training in management and hence, prohibited;
supervision 4.      That respondents appointment was
not effective since it was not in
Eligibility: Career Service (Professional) accordance with pertinent laws and
Second level eligibility[3] rules; and
  5.      Notwithstanding the initial approval
of respondents appointment, the
and at the time of her application, respondent possessed the
same can be recalled for non-
following qualifications:
compliance with the criteria provided
  by PCUPs promotion plan.[9]
Education: Master[s] in Management  
Experience: OIC-Administrative and  
Finance Service
Aggrieved by petitioners inaction on her
(January 14 to June 4, 2000; Acting appointment, respondent appealed to the Civil Service
Director- Commission (CSC), National Capital Region (NCR). On
January 17, 2003, the CSC-NCR issued an Order [10] in favor
National Capital Region (August 1998
of respondent, the pertinent portion of which reads:
to March
 
1999; Assistant NCR Director
(January 1997- WHEREFORE, we find the Appeal
meritorious. Ronidels appointment as
1998)
Development Management Officer V of
Training: First Congress of Human PCUP is deemed valid and she is,
Resource Management therefore, allowed to assume the duties of
Practitioners and Area Coordinator said position.
Congress[4]  
  SO ORDERED.[11]
 After a thorough evaluation, the PCUP National Selection  
Board (NSB) found respondent to have met the minimum
Considering that Gasgonia received her salary until February
qualifications for the position of DMO V. Accordingly, she,
25, 2001 and petitioner took his oath and assumed office
together with another applicant, Alicia S. Diaz (Diaz), were
only the following day, the CSC-NCR concluded that at the
declared fit for promotion.[5]
time of respondents appointment on February 23, 2001,
  Gasgonia was still the appointing authority. It further held
Thus, on June 1, 2000 and February 23, 2001, then PCUP that although the appointment was issued a few days prior
Chairperson Atty. Donna Z. Gasgonia (Gasgonia) issued to the expiration of Gasgonias tenure, the same was
deliberated upon for almost a year; thus, it cannot be

L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 43
considered a midnight appointment. Finally, the CSC-NCR
upheld respondents appointment since it had been passed
upon by the PCUP-NSB.
On November 18, 2003, petitioners motion for
reconsideration was denied.[12] He, thereafter, elevated the
matter to the CSC.
On September 23, 2004, the CSC granted [13] petitioners
appeal. While upholding the authority of Gasgonia, the
questioned promotional appointment was nonetheless
invalidated for non-compliance with certain procedural
requirements set forth in CSC Resolution No.
973685[14] dated August 28, 1997. The CSC Resolution
specifically required the submission of two copies of the
monthly Report on Personnel Action (ROPA), and further
provided that failure to comply with such requirement shall
render the appointment lapsed and inefficacious. Since no
ROPA was ever submitted by PCUP to CSC, respondents
appointment was, therefore, declared invalid.
On February 25, 2005, the CSC denied respondents
motion for reconsideration.[15]
On a petition for review, the CA reversed and set aside the
CSC Resolutions and consequently affirmed the CSC-NCRs
January 17, 2003 Order. The appellate court did not agree
with the CSCs action invalidating respondents appointment
solely on technical grounds. It emphasized that the
submission of the monthly ROPA was the responsibility of
PCUP and not the respondents. Hence, she should not be
prejudiced by PCUPs inaction.
Aggrieved, petitioner, through the Office of the Solicitor
General, now assails the CA decision in this petition for
review on certiorari  on the lone issue of the validity of
respondents appointment as PCUP DMO V.
 
The petition must fail.
 
In resolving the issue posed by petitioner, we must decide
the following sub-issues: 1) whether Gasgonia had the
authority to appoint respondent to the position of DMO V
notwithstanding the appointment of petitioner as the new
chairperson of the PCUP; 2) whether respondents
appointment may be invalidated for failure to meet the
qualification standards for said position; and 3) whether the
failure of PCUP to submit two copies of the ROPA made
respondents appointment inefficacious.
 
The Court notes that on February 19, 2001, petitioner was
appointed as the new chairperson and chief executive officer
of PCUP. On February 23,
2001, Gasgonia issued a promotional appointment in
favor of respondent. On the same day, respondent took her
oath and assumed office. On February 26, 2001, petitioner
also took his oath and assumed office.
Petitioner insists that since he was appointed as the new
PCUP Chairperson on the 19th of February, Gasgonia no
longer had the authority to extend a promotional
appointment in favor of respondent on the 23 rd of
February. Respondent, on the other hand, claims that
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 44
Gasgonia was still the appointing authority prior to
petitioners assumption of office on the 26th.
The CSC-NCR, CSC and the CA are one in saying that
Gasgonia still had appointing authority at the time she
issued respondents promotional appointment.
We find no reason to depart from such conclusion.
Well-settled is the rule that an oath of office is a
qualifying requirement for a public office, a prerequisite to
the full investiture of the office.  [16] Since petitioner took his
oath and assumed office only on February 26, it was only
then that his right to enter into the position became plenary
and complete. [17] Prior to such oath, Gasgonia still had the
right to exercise the functions of her office. It is also well to
note that per certification issued by Raymond C. Santiago,
Accountant of PCUP, Gasgonia received her last salary for
the period covering February 1-25, 2001; and petitioner
received his first salary for the period covering February 26
to March 7, 200[1].[18]
Clearly, at the time of respondents appointment on
February 23, Gasgonia still was the rightful occupant of the
position and was, therefore, authorized to extend a valid
promotional appointment.
 
Petitioner further contends that respondents
appointment should be invalidated for respondents failure to
meet the experience requirement for the contested position.
This contention is also without merit.
 
The question of respondents qualifications is a
factual issue which calls for the examination of the evidence
presented by the contending parties. Certainly, it is beyond
the power of this Court to review. This is especially true in
the instant case, as the CSC-NCR, CSC and the CA have all
found that, indeed, respondent possesses the required
qualifications. As repeatedly held, we accord great respect to
the findings of administrative agencies because they have
acquired expertise in their jurisdiction; and we refrain from
questioning their findings, particularly when these are
affirmed by the appellate tribunal.  We are not inclined to re-
examine and re-evaluate the probative value of the evidence
proffered in the concerned forum, which had formed the
basis of the latters impugned decision, resolution or order,
absent a clear showing of arbitrariness and want of any
rational basis therefor.[19]
 
An appointment to a public office is the unequivocal
act of designating or selecting, by one having the authority,
an individual to discharge and perform the duties
and functions of an office or trust.[20] In the appointment or
promotion of employees, the appointing authority considers
not only their civil service eligibilities but also their
performance, education, work experience, trainings and
seminars attended, agency examinations and
seniority. Consequently, the appointing authority has the
right of choice which he may exercise freely according to his
best judgment, deciding for himself who is best qualified
among those who have the necessary qualifications and
eligibilities. The final choice of the appointing authority
should be respected and left undisturbed. Judges should not
substitute their judgment for that of the appointing
authority.[21] Sufficient, if not plenary, discretion should be
granted to those entrusted with the responsibility of
administering the offices concerned. They are in a position
to determine who can best perform the functions of the
office vacated. Not only is the appointing authority the
officer primarily responsible for the administration of the
office, he is also in the best position to determine who
among the prospective appointees can effectively discharge
the functions of the position.[22]
 
Moreover, promotions in the Civil Service should
always be made on the basis of qualifications, including
occupational competence, moral character, devotion to duty,
and loyalty to the service. The last trait should be given
appropriate weight, to reward the civil servant who has
chosen to make his employment in the government a
lifetime career in which he can expect advancement through
the years for work well done. Political patronage should not
be necessary. His record alone should be sufficient
assurance that when a higher position becomes vacant, he
shall
be seriously considered for the promotion and, if warranted,
preferred to less devoted aspirants. [23]
 
We would like to stress that once an appointment is issued
and the moment the appointee assumes a position in the
civil service under a
completed appointment, he acquires a legal, not merely
equitable, right to the position which is protected not only by
statute, but also by the Constitution; and it cannot be taken
away from him either by revocation of the appointment or
by removal, except for cause, and with previous notice and
hearing.[24]
Lastly, we agree with the appellate court that respondents
appointment could not be invalidated solely because of
PCUPs failure to submit two copies of the ROPA as required
by CSC Resolution No. 97368. In the said resolution, the CSC
delegated to PCUP the authority to take final action on its
employees appointments. It further required the submission
within the first fifteen calendar days of each month two
copies of the monthly ROPA, together with certified true
copies of appointments acted upon. Finally, it provided that
failure to submit the ROPAs within the prescribed period
shall render all appointments listed therein lapsed and
ineffective.
Pursuant to the above resolution, while upholding Gasgonias
appointing power, the CSC still invalidated respondents
appointment. The CA, however, reached a different
conclusion by upholding the validity of the questioned
appointment. We quote with approval the appellate courts
ratiocination in this wise:
 
To our minds, however, the invalidation of the
[respondents] appointment based on this sole
technical ground is unwarranted, if not harsh and
arbitrary, considering the factual milieu of this
case. For one, it is not the [respondents] duty to
comply with the requirement of the submission of the
ROPA and the certified true copies of her
appointment to [the Civil Service Commission Field
Office or] CSCFO within the period stated in the
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 45
aforequoted CSC Resolution. The said resolution
categorically provides that it is the PCUP, and not the
appointee as in the case of the [respondent] here,
which is required to comply with the said reportorial
requirements.
Moreover, it bears pointing out that only a few days
after the [petitioner] assumed his new post as
PCUP Chairman, he directed the
 
 
PCUP to hold the processing of [respondents]
appointment papers in abeyance, until such time that
an assessment thereto is officially released from his
office. Unfortunately, up to this very day, the
[respondent] is still defending her right to enjoy her
promotional appointment as DMO V. Naturally, her
appointment failed to comply with the PCUPs
reportorial requirements under CSC Resolution No.
97-3685 precisely because of the [petitioners]
inaction to the same.
 
We believe that the factual circumstances of this case
calls for the application of equity. To our minds, the
invalidation of the [respondents] appointment due to
a procedural lapse which is undoubtedly beyond her
control, and certainly not of her own making but that
of the [petitioner], justifies the relaxation of the
provisions of CSC Board Resolution No. 97-3685,
pars. 6,7 and 8.  Hence, her appointment must be
upheld based on equitable considerations, and that
the non-submission of the ROPA and the certified
true copies of her appointment to the CSCFO within
the period stated in the aforequoted CSC
Resolution should not work to her damage and
prejudice. Besides, the [respondent] could not at all
be faulted for negligence as she exerted all the
necessary vigilance and efforts to reap the blessings
of a work promotion. Thus, We cannot simply ignore
her plight. She has fought hard enough to claim what
is rightfully hers and, as a matter of simple justice,
good conscience, and equity, We should not allow
Ourselves to prolong her agony.
All told, We hold that the [respondents] appointment
is valid, notwithstanding the aforecited procedural
lapse on the part of PCUP which obviously was the
own making of herein [petitioner]. [25]
 
In Civil Service Commission v. Joson, Jr.,[26] we had the
occasion to relax the rules on the reportorial requirement
and put a stamp of validity on an appointment that was not
included in the agencys ROPA within the time prescribed by
the rules. In Joson, the Philippine Overseas Employment
Administration (POEA) failed to include Priscilla Ongs
appointment in its ROPA for July 1995. The records,
however, showed that the agency failed to include her
appointment because its request for exemption from the
educational requisite for confidential staff members was yet
to be resolved by the CSC. In view thereof, we found the
non-compliance with the rules justified, and insufficient to
invalidate an appointment.
 
In the instant case, it is obvious that respondents
appointment was not included in the ROPA because the
new PCUP Chairperson and CEO had directed the Human
Resources Department to stop the processing of
respondents appointment until after the assessment thereon
was released from petitioners office. In both this and the
Joson case, the appointee could not be faulted for the non-
compliance with the CSC reportorial requirement.
 
We, therefore, apply the same conclusion to both cases.
WHEREFORE, premises considered, the petition
is DENIED for lack of merit. The CA decision and resolution
dated August 8, 2007 and December 17, 2007, respectively,
are AFFIRMED.
 
SO ORDERED.
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 46
G.R. No. 96298             May 14, 1991
RENATO M. LAPINID, petitioner,
vs.
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS
AUTHORITY and JUANITO JUNSAY, respondents.
Brillantes, Nachura, Navarro & Arcilla Law Offices for
petitioner.
Adolpho M. Guerzon for J. Junsay, Jr.
Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-
Tingzon for Civil Service Commission.
CRUZ, J.:
The issue raised in this case has been categorically resolved
in a long line of cases that should have since guided the
policies and actions of the respondent Civil Service
Commission. Disregard of our consistent ruling on this
matter has needlessly imposed on the valuable time of the
Court and indeed borders on disrespect for the highest
tribunal. We state at the outset that this conduct can no
longer be countenanced.
Petitioner Renato M. Lapinid was appointed by the Philippine
Ports Authority to the position of Terminal Supervisor at the
Manila International Container Terminal on October 1, 1988.
This appointment was protested on December 15, 1988, by
private respondent Juanito Junsay, who reiterated his earlier
representations with the Appeals Board of the PPA on May 9,
1988, for a review of the decision of the Placement
Committee dated May 3, 1988. He contended that he should
be designated terminal supervisor, or to any other
comparable position, in view of his preferential right thereto.
On June 26, 1989, complaining that the PPA had not acted
on his protest, Junsay went to the Civil Service Commission
and challenged Lapinid's appointment on the same grounds
he had earlier raised before the PPA. In a resolution dated
February 14, 1990, the Commission disposed as follows:
After a careful review of the records of the case,
the Commission finds the appeal meritorious. In the
comparative evaluation sheets, the parties were
evaluated according to the following criteria,
namely: eligibility; education; work experience;
productivity/performance/ attendance; integrity;
initiative/leadership; and physical
characteristics/personality traits. The results of the
evaluation are as follows:
JUNSAY, Juanito — 79.5
VILLEGAS, Benjamin — 79
LAPINID, Renato — 75
DULFO, Antonio — 78
MARIANO, Eleuterio — 79
FLORES, Nestor — 80
DE GUZMAN, Alfonso — 80
VER, Cesar — 80
It is thus obvious that Protestants Junsay (79.5)
and Villegas (79) have an edge over that of
protestees Lapinid (75) and Dulfo (78).
Foregoing premises considered, it is directed that
Appellants Juanito Junsay and Benjamin Villegas be
appointed as Terminal Supervisor (SG 18) vice
protestees Renato Lapinid and Antonio Dulfo
respectively who may be considered for
appointment to any position commensurate and
suitable to their qualifications, and that the
 Commission be notified within ten (10) days of the
implementation hereof.
SO ORDERED.
Upon learning of the said resolution, Lapinid, 7who claimed
he had not been informed of the appeal and had not been
heard thereon, filed a motion for reconsideration on March
19, 1990. This was denied on May 25, 1990. The Philippine
Ports Authority also filed its own motion for reconsideration
on June 19, 1990, which was denied on August 17, 1990. A
second motion for reconsideration filed on September 14,
1990, based on the re-appreciation of Lapinid's rating from
75% to 84%, was also denied on October 19, 1990.
When the petitioner came to this Court on December 13,
1990, we resolved to require Comments from the
respondents and in the meantime issued a temporary
restraining order. The Solicitor General took a stand against
the Civil Service Commission which, at his suggestion, was
allowed to file its own Comment. The petitioner filed a
Reply. The private respondent's Comment was dispensed
with when it was not filed within the prescribed period.
We see no reason to deviate from our consistent ruling on
the issue before us.
In Luego v. Civil Service Commission,1 this Court declared:
The issue is starkly simple: Is the Civil Service
Commission authorized to disapprove a permanent
appointment on the ground that another person is
better qualified than the appointee and, on the
basis of this finding, order his replacement by the
latter?
x x x           x x x          x x x
Appointment is an essentially discretionary power
and must be performed by the officer in which it is
vested according to his best lights, the only
condition being that the appointee should possess
the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground
that there are others better qualified who should
have been preferred. This is a political question
involving considerations of wisdom which only the
appointing authority can decide.
x x x           x x x          x x x
Significantly, the Commission on Civil Service
acknowledged that both the petitioner and the
private respondent were qualified for the position in
controversy. That recognition alone rendered
it functus officio in the case and prevented it from
acting further thereon except to affirm the validity
of the petitioner's appointment. To be sure, it had
no authority to revoke the said appointment simply
because it believed that the private respondent was
better qualified for that would have constituted an
encroachment on the discretion vested solely in the
city mayor.
The same ruling has been affirmed, in practically the same
language as Luego, in Central Bank v. Civil Service
Commission, 171 SCRA 744; Santiago v. Civil Service
Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022
and G.R. No. 85804, March 9, 1989, En Banc, Minute
Resolution; Galura v. Civil Service Commission , G.R. No.
85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v.
Mamangun, G.R. No. 85941, June 15, 1989, En Banc, Minute
Resolution; Remigio v. Chairman, Civil Service Commission,
G.R. No. 86324, July 6, 1989, En Banc, Minute
Resolution; Aurora Macacua v. Civil Service Commission ,
G.R. No. 91520, July 31, 1990, En Banc, Minute
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 47
Resolution; Abdulwahab A. Bayao v. Civil Service
Commission, G.R. No. 92388, September 11, 1990, En Banc,
Minute Resolution; Orbos v. Civil Service Commission , G.R.
No. 92561, September 12, 1990; Alicia D. Tagaro v. The
Hon. Civil Service Commission, et al., G.R. No. 90477,
September 13, 1990, En Banc, Minute Resolution; Elenito
Lim v. Civil Service Commission, et al ., G.R. No. 87145,
October 11, 1990, En Banc, Minute Resolution; Teologo v.
Civil Service Commission, G.R. No. 92103, November 8,
1990; Simpao v. Civil Service Commission , G.R. No. 85976,
November 15, 1990.
Only recently, in Gaspar v. Court of Appeals2 this Court said:
The only function of the Civil Service Commission in
cases of this nature, according to  Luego, is to
review the appointment in the light of the
requirements of the Civil Service Law, and when it
finds the appointee to be qualified and all other
legal requirements have been otherwise satisfied, it
has no choice but to attest to the
appointment. Luego finally points out that the
recognition by the Commission that both the
appointee and the protestant are qualified for the
position in controversy renders it functus officio in
the case and prevents it from acting further
thereon except to affirm the validity of the former's
appointment; it has no authority to revoke the
appointment simply because it considers another
employee to be better qualified for that would
constitute an encroachment on the discretion
vested in the appointing authority.
x x x           x x x          x x x
The determination of who among several
candidates for a vacant position has the best
qualifications is vested in the sound discretion of
the Department Head or appointing authority and
not in the Civil Service Commission. Every particular
job in an office calls for both formal and informal
qualifications. Formal qualifications such as age,
number of academic units in a certain course,
seminars attended, etc., may be valuable but so are
such intangibles as resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects for
the future, and best interests, of the service. Given
the demands of a certain job, who can do it best
should be left to the Head of the Office concerned
provided the legal requirements for the office are
satisfied. The Civil Service Commission cannot
substitute its judgment for that of the Head of
Office in this regard.
It is therefore incomprehensible to the Court why, despite
these definitive pronouncements, the Civil Service
Commission has seen fit to ignore, if not defy, the clear
mandate of the Court.
We declare once again, and let us hope for the last time,
that the Civil Service Commission has no power of
appointment except over its own personnel. Neither does it
have the authority to review the appointments made by
other offices except only to ascertain if the appointee
possesses the required qualifications. The determination of
who among aspirants with the minimum statutory
qualifications should be preferred belongs to the appointing
authority and not the Civil Service Commission. It cannot
disallow an appointment because it believes another person
is better qualified and much less can it direct the
appointment of its own choice.
Appointment is a highly discretionary act that even this
Court cannot compel.1âwphi1 While the act of appointment
may in proper cases be the subject of mandamus, the compliance with its decisions even if the Commission may
selection itself of the appointee—taking into account the not agree with them.
totality of his qualifications, including those abstract qualities
The Commission on Civil Service has been duly warned.
that define his personality—is the prerogative of the
Henceforth, it disobeys at its peril.
appointing authority. This is a matter addressed only to the
discretion of the appointing authority. It is a political WHEREFORE, the petition is GRANTED. The Resolutions of
question that the Civil Service Commission has no power to the respondent Civil Service Commission dated February 14,
review under the Constitution and the applicable laws. 1990, May 25, 1990, August 17, 1990, and October 19,
1990, are REVERSED and SET ASIDE. The temporary
Commenting on the limits of the powers of the public
restraining order dated December 13, 1990, is made
respondent, Luego declared:
PERMANENT. No costs.
It is understandable if one is likely to be misled by
SO ORDERED.
the language of Section 9(h) of Article V of the Civil
Service Decree because it says the Commission has
the power to "approve" and "disapprove"
appointments. Thus, it is provided therein that the
Commission shall have inter alia the power to:
9(h) Approve all appointments, whether
original or promotional, to positions in the
civil service, except those presidential
appointees, members of the Armed Forces
of the Philippines, police forces, firemen,
and jailguards, and disapprove those
where the appointees do not possess
appropriate eligibility or required
qualifications. (Emphasis supplied)
However, a full reading of the provision, especially
of the underscored parts, will make it clear that all
the Commission is actually allowed to do is check
whether or not the appointee possesses the
appropriate civil service eligibility or the required
qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other
criterion is permitted by law to be employed by the
Commission when it acts on—or as the Decree
says, "approves" or "disapproves'—an appointment
made by the proper authorities.
The Court believes it has stated the foregoing doctrine
clearly enough, and often enough, for the Civil Service
Commission not to understand them. The bench does; the
bar does; and we see no reason why the Civil Service
Commission does not. If it will not, then that is an entirely
different matter and shall be treated accordingly.
We note with stern disapproval that the Civil Service
Commission has once again directed the appointment of its
own choice in the case at bar. We must therefore make the
following injunctions which the Commission must note well
and follow strictly.
Whatever the reasons for its conduct, the Civil Service
Commission is ORDERED to desist from disregarding the
doctrine announced in Luego v. Civil Service
Commission and the subsequent decisions reiterating such
ruling. Up to this point, the Court has leniently regarded the
attitude of the public respondent on this matter as imputable
to a lack of comprehension and not to intentional
intransigence. But we are no longer disposed to indulge that
fiction. Henceforth, departure from the mandate of Luego by
the Civil Service Commission after the date of the
promulgation of this decision shall be considered contempt
of this Court and shall be dealt with severely, in view
especially of the status of the contemner.
While we appreciate the fact that the Commission is a
constitutional body, we must stress, as a necessary
reminder, that every department and office in the Republic
must know its place in the scheme of the Constitution. The
Civil Service Commission should recognize that its acts are
subject to reversal by this Court, which expects full

L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 48
 G.R. No. 92008 July 30, 1990
RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
Ledesma, Saludo & Associates for petitioner.
CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks
reinstatement to the office of General Manager of the
Philippine Tourism Authority from which he claims to have
been removed without just cause in violation of his security
of tenure.
The petitioner bases his claim on the following
communication addressed to him by the Minister of Tourism
on April 7, 1986:
MEMORANDUM TO: MR. RAMON P.
BINAMIRA
You are hereby designated General
Manager of the Philippine Tourism
Authority, effective immediately.
By virtue hereof, you may qualify and
enter upon the performance of the duties
of the office.
(Sgd.) JOSE ANTONIO GONZALES Minister
of Tourism and Chairman, P.T.A. Board
Pursuant thereto, the petitioner assumed office on the same
date.
On April 10, 1986, Minister Gonzales sought approval from
President Aquino of the composition of the Board of
Directors of the PTA, which included Binamira as Vice-
Chairman in his capacity as General Manager. This approval
was given by the President on the same date. 1
Binamira claims that since assuming office, he had
discharged the duties of PTA General Manager and Vice-
Chairman of its Board of Directors and had been
acknowledged as such by various government offices,
including the Office of the President.
He complains, though, that on January 2, 1990, his
resignation was demanded by respondent Garrucho as the
new Secretary of Tourism. Binamira's demurrer led to an
unpleasant exchange that led to his filing of a complaint
against the Secretary with the Commission on Human
Rights. But that is another matter that does not concern us
here.
What does is that on January 4, 1990, President Aquino sent
respondent Garrucho the following memorandum, 2copy
furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D.
Garrucho, Jr.. Secretary of Tourism
It appearing from the records you have
submitted to this Office that the present
General Manager of the Philippine Tourism
Authority was designated not by the
President, as required by P.D. No. 564, as
amended, but only by the Secretary of
Tourism, such designation is invalid.
Accordingly, you are hereby designated
concurrently as General Manager, effective
immediately, until I can appoint a person
to serve in the said office in a permanent
capacity.
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 49
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine
Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA
in accordance with this memorandum, the petitioner filed
this action against him to question his title. Subsequently,
while his original petition was pending, Binamira filed a
supplemental petition alleging that on April 6, 1990, the
President of the Philippines appointed Jose A. Capistrano as
General Manager of the Philippine Tourism Authority.
Capistrano was impleaded as additional respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine
Tourism Authority, provides as follows:
SECTION 23-A. General Manager-
Appointment and Tenure. — The General
Manager shall be appointed by the
President of the Philippines and shall serve
for a term of six (6) years unless sooner
removed for cause; Provided, That upon
the expiration of his term, he shall serve
as such until his successor shall have been
appointed and qualified. (As amended by
P.D. 1400)
It is not disputed that the petitioner was not appointed by
the President of the Philippines but only designated  by the
Minister of Tourism. There is a clear distinction between
appointment and designation that the petitioner has failed to
consider.
Appointment may be defined as the selection, by the
authority vested with the power, of an individual who is to
exercise the functions of a given office. 3 When completed,
usually with its confirmation, the appointment results in
security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office.
Designation, on the other hand, connotes merely the
imposition by law of additional duties on an incumbent
official, 4as where, in the case before us, the Secretary of
Tourism is designated Chairman of the Board of Directors of
the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are
designated by the Chief Justice to sit in the Electoral
Tribunal of the Senate or the House of Representatives. 5 It
is said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment
because it likewise involves the naming of a particular
person to a specified public office. That is the common
understanding of the term. However, where the person is
merely designated and not appointed, the implication is that
he shall hold the office only in a temporary capacity and may
be replaced at will by the appointing authority. In this sense,
the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on
the person named.
Even if so understood, that is, as an appointment, the
designation of the petitioner cannot sustain his claim that he
has been illegally removed. The reason is that the decree
clearly provides that the appointment of the General
Manager of the Philippine Tourism Authority shall be made
by the President of the Philippines, not by any other officer.
Appointment involves the exercise of discretion, which
because of its nature cannot be delegated. Legally speaking,
it was not possible for Minister Gonzales to assume the
exercise of that discretion as an alter ego of the President.
The appointment (or designation) of the petitioner was not a Such designation being merely provisional, it could be
merely mechanical or ministerial act that could be validly recalled at will, as in fact it was recalled by the President
performed by a subordinate even if he happened as in this herself, through the memorandum she addressed to
case to be a member of the Cabinet. Secretary Garrucho on January 4, 1990.
An officer to whom a discretion is With these rulings, the petitioner's claim of security of
entrusted cannot delegate it to another, tenure must perforce fall to the ground. His designation
the presumption being that he was chosen being an unlawful encroachment on a presidential
because he was deemed fit and competent prerogative, he did not acquire valid title thereunder to the
to exercise that judgment and discretion, position in question. Even if it be assumed that it could be
and unless the power to substitute and was authorized, the designation signified merely a
another in his place has been given to temporary or acting appointment that could be legally
him, he cannot delegate his duties to withdrawn at pleasure, as in fact it was (albeit for a different
another. 6 reason).i•t•c-aüsl  In either case, the petitioner's claim of
security of tenure must be rejected.
In those cases in which the proper
execution of the office requires, on the The Court sympathizes with the petitioner, who apparently
part of the officer, the exercise of believed in good faith that he was being extended a
judgment or discretion, the presumption is permanent appointment by the Minister of Tourism. After all,
that he was chosen because he was Minister Gonzales had the ostensible authority to do so at
deemed fit and competent to exercise that the time the designation was made. This belief seemed
judgment and discretion, and, unless strengthened when President Aquino later approved the
power to substitute another in his place composition of the PTA Board of Directors where the
has been given to him, he cannot delegate petitioner was designated Vice-Chairman because of his
his duties to another. 7 position as General Manager of the PTA. However, such
circumstances fall short of the categorical appointment
Indeed, even on the assumption that the power conferred
required to be made by the President herself, and not the
on the President could be validly exercised by the Secretary,
Minister of Tourism, under Sec. 23 of P.D. No. 564. We must
we still cannot accept that the act of the latter, as an
rule therefore that the petitioner never acquired valid title to
extension or "projection" of the personality of the President,
the disputed position and so has no right to be reinstated as
made irreversible the petitioner's title to the position in
General Manager of the Philippine Tourism Authority.
question. The petitioner's conclusion that Minister Gonzales's
act was in effect the act of President Aquino is based only on WHEREFORE, the petition is DISMISSED, with costs against
half the doctrine he vigorously invokes. Justice Laurel stated the petitioner. It is so ordered.
that doctrine clearly in the landmark case of Villena v.
Secretary of the Interior, 8 where he described the
relationship of the President of the Philippines and the
members of the Cabinet as follows:
... all executive and administrative
organizations are adjuncts of the
Executive Department, the heads of the
various executive departments are
assistants and agents of the Chief
Executive, and, except in cases where the
Chief Executive is required by the
Constitution or the law to act in person or
the exigencies of the situation demand
that he act personally, the multifarious
executive and administrative functions of
the Chief Executive are performed by and
through the executive departments, and
the acts of the secretaries of such
departments, performed and promulgated
in the regular course of business, are,
unless disapproved or reprobated by the
Chief Executive, presumptively the acts of
the Chief Executive.
The doctrine presumes the acts of the Department Head to
be the acts of the President of the Philippines when
"performed and promulgated in the regular course of
business," which was true of the designation made by
Minister Gonzales in favor of the petitioner. But it also adds
that such acts shall be considered valid only if not
'disapproved or reprobated by the Chief Executive," as also
happened in the case at bar.
The argument that the designation made by Minister
Gonzales was approved by President Aquino through her
approval of the composition of the Board of Directors of the
PTA is not persuasive. It must be remembered that Binamira
was included therein as Vice- Chairman only because of his
designation as PTA General Manager by Minister Gonzales.

L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 50
 FUNA VS. ERMITA
GR 184740
VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus
under Rule 65 with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction, to
declare as unconstitutional the designation of respondent
Undersecretary Maria Elena H. Bautista as Officer-in-Charge
(OIC) of the Maritime Industry Authority (MARINA).
The Antecedents
On October 4, 2006, President Gloria Macapagal-Arroyo
appointed respondent Maria Elena H. Bautista (Bautista) as
Undersecretary of the Department of Transportation and
Communications (DOTC), vice Agustin R. Bengzon. Bautista
was designated as Undersecretary for Maritime Transport of
the department under Special Order No. 2006-171
dated October 23, 2006.[1]
On September 1, 2008, following the resignation of then
MARINA Administrator Vicente T. Suazo, Jr., Bautista was
designated as Officer-in-Charge (OIC), Office of the
Administrator, MARINA, in concurrent capacity as DOTC
Undersecretary.[2]
On October 21, 2008, Dennis A. B. Funa in his capacity as
taxpayer, concerned citizen and lawyer, filed the instant
petition challenging the constitutionality of Bautistas
appointment/designation, which is proscribed by the
prohibition on the President, Vice-President, the Members of
the Cabinet, and their deputies and assistants to hold any
other office or employment.
On January 5, 2009, during the pendency of this petition,
Bautista was appointed Administrator of the MARINA vice
Vicente T. Suazo, Jr.[3] and she assumed her duties and
responsibilities as such on February 2, 2009.[4]
The Case
Petitioner argues that Bautistas concurrent positions as DOTC
Undersecretary and MARINA OIC is in violation of Section 13,
Article VII of the 1987 Constitution, as interpreted and
explained by this Court in Civil Liberties
Union v. Executive Secretary,[5] and reiterated in Public
Interest Center, Inc. v. Elma.[6]  He points out that while it
was clarified in Civil Liberties Union  that the prohibition does
not apply to those positions held in ex-officio  capacities, the
position of MARINA Administrator is not ex-officio  to the post
of DOTC Undersecretary, as can be gleaned from the
provisions of its charter, Presidential Decree (P.D.) No. 474,
[7]
 as amended by Executive Order (EO) No. 125-A.
[8]
 Moreover, the provisions on the DOTC
the Administrative Code of 1987, specifically Sections 23 and
24, Chapter 6, Title XV, Book IV do not provide any ex-
officio  role for the undersecretaries in any of the
departments attached agencies. The fact that Bautista was
extended an appointment naming her as OIC of MARINA
shows that she does not occupy it in an ex-officio  capacity
since an ex-officio  position does not require any further
warrant or appoint.[9]
Petitioner further contends that even if Bautistas
appointment or designation as OIC of MARINA was intended
to be merely temporary, still, such designation must not
violate a standing constitutional prohibition, citing the
rationale in Achacoso v. Macaraig.[10]  Section 13, Article VII
of the 1987 Constitution does not enumerate temporariness
as one (1) of the exceptions thereto.And since a temporary
designation does not have a maximum duration, it can go on
for months or years. In effect, the temporary
appointment/designation can effectively circumvent the
prohibition.Allowing undersecretaries or assistant secretaries
to occupy other government posts would open a Pandoras
Box as to let them feast on choice government
positions. Thus, in case of vacancy where no permanent
appointment could as yet be made, the remedy would be to
designate one (1) of the two (2) Deputy Administrators as
the Acting Administrator. Such would be the logical course,
the said officers being in a better position in terms of
knowledge and experience to run the agency in a temporary
capacity. Should none of them merit the Presidents
confidence, then the practical remedy would be for
Undersecretary Bautista to first resign as Undersecretary in
order to qualify her as Administrator of MARINA. As to
whether she in fact does not receive or has waived any
remuneration, the same does not matter because
remuneration is not an element in determining whether
there has been a violation of Section 13, Article VII of
the 1987 Constitution.[11]
Petitioner likewise asserts the incompatibility between the
posts of DOTC Undersecretary and MARINA
Administrator. The reason is that with respect to the affairs
in the maritime industry, the recommendations of
the MARINA may be the subject of counter or opposing
recommendations from the Undersecretary for Maritime
Transport. In this case, the DOTC Undersecretary for
Maritime Transport and the OIC of MARINA have become
one (1) and the same person. There is no more checking
and counter-checking of powers and functions, and therein
lies the danger to the maritime industry. There is no longer
a person above the Administrator of MARINA who will be
reviewing the acts of said agency because the person who
should be overseeing MARINA, the Undersecretary for
Maritime Transport, has effectively been compromised.[12]
Finally, petitioner contends that there is a strong possibility
in this case that the challenge herein can be rendered moot
through the expediency of simply revoking the temporary
appointment/designation. But since a similar violation can be
committed in the future, there exists a possibility of evading
review, and hence supervening events should not prevent
the Court from deciding cases involving grave violation of
the 1987 Constitution, as this Court ruled in Public Interest
Center. Notwithstanding its mootness therefore, should it
occur, there is a compelling reason for this case to be
decided: the issue raised being capable of repetition, yet
evading review.[13]
On the other hand, the respondents argue that the
in requisites of a judicial inquiry are not present in this case. In
fact, there no longer exists an actual controversy that needs
to be resolved in view of the appointment of respondent
Bautista as MARINA Administrator effective February 2,
2009 and the relinquishment of her post as DOTC
Undersecretary for Maritime Transport, which rendered the
present petition moot and academic. Petitioners prayer for a
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 51
temporary restraining order or writ of preliminary injunction
is likewise moot and academic since, with this supervening
event, there is nothing left to enjoin.[14]
Respondents also raise the lack of legal standing of
petitioner to bring this suit. Clear from the standard set
in Public Interest Center  is the requirement that the party
suing as a taxpayer must prove that he has sufficient
interest in preventing illegal expenditure of public funds, and
more particularly, his personal and substantial interest in the
case. Petitioner, however, has not alleged any personal or
substantial interest in this case. Neither has he claimed that
public funds were actually disbursed in connection with
respondent Bautistas designation as MARINA OIC. It is to be
noted that respondent Bautista did not receive any salary
while she was MARINA OIC. As to the alleged transcendental
importance of an issue, this should not automatically confer
legal standing on a party.[15]
Assuming for the sake of argument that the legal question
raised herein needs to be resolved, respondents submit that
the petition should still be dismissed for being unmeritorious
considering that Bautistas concurrent designation as
MARINA OIC and DOTC Undersecretary was
constitutional. There was no violation of Section 13, Article
VII of the 1987 Constitution because respondent Bautista
was merely designated acting head
of MARINA on September 1, 2008. She was designated
MARINA OIC, not appointed MARINA Administrator. With the
resignation of Vicente T. Suazo, Jr., the position of MARINA
Administrator was left vacant, and pending the appointment
of permanent Administrator, respondent Bautista was
designated OIC in a temporary capacity for the purpose of
preventing a hiatus in the discharge of official functions. Her
case thus falls under the recognized exceptions to the rule
against multiple offices, i.e.,  without additional
compensation (she did not receive any emolument as
MARINA OIC) and as required by the primary functions of
the office. Besides, Bautista held the position for four (4)
months only, as in fact when she was appointed MARINA
Administrator on February 2, 2009, she relinquished her post
as DOTC Undersecretary for Maritime Transport, in
acknowledgment of the proscription on the holding of
multiple offices.[16]
As to petitioners argument that the DOTC Undersecretary for
Maritime Transport and MARINA Administrator are
incompatible offices, respondents cite the test laid down
in People v. Green,[17]which held that [T]he offices must
subordinate, one [over] the other, and they must, per
se,  have the right to interfere, one with the other, before
they are compatible at common law. Thus, respondents
point out that any recommendation by the MARINA
Administrator concerning issues of policy and administration
go to the MARINA Board and not the Undersecretary for
Maritime Transport. The Undersecretary for Maritime
Transport is, in turn, under the direct supervision of the
DOTC Secretary. Petitioners fear that there is no longer a
person above the Administrator of MARINA who will be
reviewing the acts of said agency (the Undersecretary for
Maritime Transport) is, therefore, clearly unfounded.[18]
In his Reply, petitioner contends that respondents argument
on the incompatibility of positions was made on the mere
assumption that the positions of DOTC Undersecretary for
Maritime Transport and the administratorship of MARINA are
closely related and is governed by Section 7, paragraph 2,
Article IX-B of the 1987 Constitution rather than by Section
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 52
13, Article VII. In other words, it was a mere secondary
argument. The fact remains that, incompatible or not,
Section 13, Article VII still does not allow the herein
challenged designation.[19]
The sole issue to be resolved is whether or not the
designation of respondent Bautista as OIC of MARINA,
concurrent with the position of DOTC Undersecretary for
Maritime Transport to which she had been appointed,
violated the constitutional proscription against dual or
multiple offices for Cabinet Members and their deputies and
assistants.
Our Ruling
The petition is meritorious.
Requisites for Judicial Review
The courts power of judicial review, like almost all other
powers conferred by the Constitution, is subject to several
limitations, namely:  (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the
person challenging the act must have standing to challenge;
he must have a personal and substantial interest in the case,
such that he has sustained or will sustain, direct injury as a
result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be
the very lis mota  of the case.[20] Respondents assert that the
second requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he
can show that he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of
the government; (2) the injury is fairly traceable to the
challenged action; and (3) the injury is likely to be redressed
by a favorable action.[21] The question on standing is
whether such parties have alleged such a personal stake in
the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of
difficult constitutional questions.[22]
In David v. Macapagal-Arroyo,[23] summarizing the rules
culled from jurisprudence, we held that taxpayers, voters,
concerned citizens, and legislators may be accorded standing
to sue, provided that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of
illegal disbursement of public
funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of
obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must
be a showing that the issues
raised are of transcendental
importance which must be
settled early; and
 (5) for legislators, there must be a claim government-owned or controlled
that the official action complained corporations or their subsidiaries. They
of infringes upon their shall strictly avoid conflict of interest in the
prerogatives as conduct of their office.
legislators. [EMPHASIS
 
SUPPLIED.]
On the other hand, Section 7, paragraph (2), Article IX-B
reads:
Petitioner having alleged a grave violation of the
constitutional prohibition against Members of the Cabinet,  
their deputies and assistants holding two (2) or more SEC. 7. x x x
positions in government, the fact that he filed this suit as a
concerned citizen sufficiently confers him with standing to  
sue for redress of such illegal act by public officials. Unless otherwise allowed by
law or the primary functions of his
position, no appointive official shall hold
The other objection raised by the respondent is that the
any other office or employment in the
resolution of this case had been overtaken by events
Government or any subdivision, agency or
considering the effectivity of respondent Bautistas
instrumentality thereof, including
appointment as MARINA Administrator effective February 2,
government-owned or controlled
2009 and her relinquishment of her former position as DOTC
corporations or their subsidiaries.
Undersecretary for Maritime Transport.

In Civil Liberties Union, a constitutional challenge was

A moot and academic case is one that ceases to present a
brought before this Court to nullify EO No. 284 issued by
justiciable controversy by virtue of supervening events, so
then President Corazon C. Aquino on July 25, 1987, which
that a declaration thereon would be of no practical use or
included Members of the Cabinet, undersecretaries and
value. Generally, courts decline jurisdiction over such case or
assistant secretaries in its provisions limiting to two (2) the
dismiss it on ground of mootness. [24] However, as we held
positions that appointive officials of the Executive
in Public Interest Center, Inc. v. Elma,[25]  supervening
Department may hold in government and government
events, whether intended or accidental, cannot prevent the
corporations. Interpreting the above provisions in the light of
Court from rendering a decision if there is a grave violation
the history and times and the conditions and circumstances
of the Constitution.  Even in cases where supervening events
under which the Constitution was framed, this Court struck
had made the cases moot, this Court did not hesitate to
down as unconstitutional said executive issuance, saying
resolve the legal or constitutional issues raised to formulate
that it actually allows them to hold multiple offices or
controlling principles to guide the bench, bar, and public. [26]
employment in direct contravention of the express mandate
of Section 13, Article VII of the 1987 Constitution prohibiting
As a rule, the writ of prohibition will not lie to enjoin acts them from doing so, unless otherwise provided in the 1987
already done.  However, as an exception to the rule on Constitution itself.
mootness, courts will decide a question otherwise moot if it
is capable of repetition yet evading review. [27] In the present
Noting that the prohibition imposed on the President and his
case, the mootness of the petition does not bar its
official family is all-embracing, the disqualification was held
resolution. The question of the constitutionality of the
to be absolute, as the holding of any other office is not
Presidents appointment or designation of a Department
qualified by the phrase in the Government unlike in Section
Undersecretary as officer-in-charge of an attached agency
13, Article VI prohibiting Senators and Members of the
will arise in every such appointment.[28]
House of Representatives from holding any other office or
employment in the Government; and when compared with
Undersecretary Bautistas designation as MARINA other officials and employees such as members of the
OIC falls under  the  stricter prohibition under Section armed forces and civil service employees, we concluded
13, Article VII of the 1987 Constitution. thus:

These sweeping, all-embracing

Resolution of the present controversy hinges on the correct prohibitions imposed on the President and
application of Section 13, Article VII of the 1987 his official family, which prohibitions are
Constitution, which provides: not similarly imposed on other public
officials or employees such as the
Members of Congress, members of the
SEC. 13. The President, Vice-
civil service in general and members of the
President, the Members of the
armed forces, are proof of the intent of
Cabinet, and their deputies or
the 1987 Constitution to treat the
assistants shall not, unless otherwise
President and his official family as a
provided in this Constitution, hold
class by itself and to impose upon
any other office or employment
said class stricter prohibitions.
during their tenure. They shall not,
during said tenure, directly or indirectly
Such intent of the 1986
practice any other profession, participate
Constitutional Commission to be stricter
in any business, or be financially interested
with the President and his official family
in any contract with, or in any franchise, or
was also succinctly articulated by
special privilege granted by the
Commissioner Vicente Foz after
Government or any subdivision, agency, or
Commissioner Regalado Maambong noted
instrumentality thereof, including

L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 53
during the floor deliberations and debate
that there was no symmetry between the
Civil Service prohibitions, originally found
in the General Provisions and the
anticipated report on the Executive
Department. Commissioner Foz
Commented, We actually have to be
stricter with the President and the
members of the Cabinet because they
exercise more powers and, therefore,
more checks and restraints on them are
called for because there is more possibility
of abuse in their case.
Thus, while all other
appointive officials in the civil service
are allowed to hold other office or
employment in the government
during their tenure when such is
allowed by law or by the primary
functions of their positions, members
of the Cabinet, their deputies and
assistants may do so only when
expressly authorized by the
Constitution itself. In other words,
Section 7, Article IX-B is meant to lay
down the general rule applicable to all
elective and appointive public officials and
employees, while Section 13, Article VII
is meant to be the exception
applicable only to the President, the
Vice-President, Members of the
Cabinet, their deputies and
assistants.
xxxx
Since the evident purpose of the
framers of the 1987 Constitution is to
impose a stricter prohibition on the
President, Vice-President, members of the
Cabinet, their deputies and assistants with
respect to holding multiple offices or
employment in the government during
their tenure, the exception to this
prohibition must be read with equal
severity. On its face, the language of
Section 13, Article VII is prohibitory so that
it must be understood as intended to be a
positive and unequivocal negation of the
privilege of holding multiple government
offices or employment. Verily, wherever
the language used in the constitution is
prohibitory, it is to be understood as
intended to be a positive and unequivocal
negation. The phrase unless otherwise
provided in this Constitution must be given
a literal interpretation to refer only to
those particular instances cited in the
Constitution itself, to wit: the Vice-
President being appointed as a member of
the Cabinet under Section 3, par. (2),
Article VII; or acting as President in those
instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary
of Justice being ex-officio member of the
Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.[29] [EMPHASIS
SUPPLIED.]
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 54
Respondent Bautista being then the appointed
Undersecretary of DOTC, she was thus covered by
the stricter  prohibition under Section 13, Article VII and
consequently she cannot invoke the exception provided in
Section 7, paragraph 2, Article IX-B where holding another
office is allowed by law or the primary functions of the
position. Neither was she designated OIC of MARINA in
an ex-officio capacity, which is the exception recognized
in Civil Liberties Union.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the 1987
Constitution was held inapplicable to posts occupied by the
Executive officials specified therein, without additional
compensation in an ex-officio capacity as provided by law
and as required by the primary functions of said office. The
reason is that these posts do not comprise any other office
within the contemplation of the constitutional prohibition but
are properly an imposition of additional duties and functions
on said officials.[30] Apart from their bare assertion that
respondent Bautista did not receive any compensation when
she was OIC of MARINA, respondents failed to demonstrate
clearly that her designation as such OIC was in an ex-
officio capacity as required by the primary functions of her
office as DOTC Undersecretary for Maritime Transport.
MARINA was created by virtue of P.D. No. 474 issued by
President Ferdinand E. Marcos on June 1, 1974. It is
mandated to undertake the following:
(a) Adopt and implement a practicable and
coordinated Maritime Industry Development
Program which shall include, among others,
the early replacement of obsolescent and
uneconomic vessels; modernization and
expansion of the Philippine merchant fleet,
enhancement of domestic capability for
shipbuilding, repair and maintenance; and
the development of reservoir of trained
manpower;
(b) Provide and help provide the necessary; (i)
financial assistance to the industry through
public and private financing institutions and
instrumentalities; (ii) technological
assistance; and (iii) in general, a favorable
climate for expansion of domestic and
foreign investments in shipping enterprises;
and
(c) Provide for the effective supervision,
regulation and rationalization of the
organizational management, ownership and
operations of all water transport utilities,
and other maritime enterprises.[31]
The management of MARINA is vested in the Maritime
Administrator, who shall be directly assisted by the Deputy
Administrator for Planning and a Deputy Administrator for
Operations, who shall be appointed by the President for a
term of six (6) years. The law likewise prescribes the
qualifications for the office, including such adequate training
and experience in economics, technology, finance, law,
management, public utility, or in other phases or aspects of
the maritime industry, and he or she is entitled to receive a
fixed annual salary.[32] The Administrator shall be directly
responsible to the Maritime Industry Board, MARINAs
governing body, and shall have powers, functions and duties
as provided in P.D. No. 474, which provides, under Sections
11 and 12, for his or her general and specific functions,
respectively, as follows:
SEC. 11. General Powers and Functions of the
Administrator. Subject to the general supervision and
control of the Board, the Administrators shall have the
following general powers, functions and duties;
a. To implement, enforce and apply the policies,
programs, standards, guidelines, procedures,
decisions and rules and regulations issued,
prescribed or adopted by the Board pursuant to this
Decree;
b. To undertake researches, studies, investigations
and other activities and projects, on his own
initiative or upon instructions of the Board, and to
submit comprehensive reports and appropriate
recommendations to the Board for its information
and action;
c. To undertake studies to determine present and
future requirements for port development including
navigational aids, and improvement of waterways
and navigable waters in consultation with
appropriate agencies;
d. To pursue continuing research and
developmental programs on expansion and
modernization of the merchant fleet and supporting
facilities taking into consideration the needs of the
domestic trade and the need of regional economic
cooperation schemes; and
e. To manage the affairs of the Authority subject to
the provisions of this Decree and applicable laws,
orders, rules and regulations of other appropriate
government entities.
 
SEC. 12. Specific Powers and Functions of the
Administrator. In addition to his general powers and
functions, the Administrator shall;
a. Issue Certificate of Philippine Registry for all
vessels being used in Philippine waters, including
fishing vessels covered by Presidential Decree No. 43
except transient civilian vessels of foreign registry,
vessels owned and/or operated by the Armed Forces
of the Philippines or by foreign governments for
military purposes, and bancas, sailboats and other
watercraft which are not motorized, of less than three
gross tons;
b. Provide a system of assisting various officers,
professionals, technicians, skilled workers and
seamen to be gainfully employed in shipping
enterprises, priority being given to domestic needs;
c. In collaboration and coordination with the
Department of Labor, to look into, and promote
improvements in the working conditions and terms
of employment of the officers and crew of vessels
of Philippine registry, and of such officers and crew
members who are Philippine citizens and employed
by foreign flag vessels, as well as of personnel of
other shipping enterprises, and to assist in the
settlement of disputes between the shipowners and
ship operators and such officers and crew members
and between the owner or manager of other
shipping enterprises and their personnel;
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 55
d. To require any public water transport utility or
Philippine flag vessels to provide shipping services
to any coastal areas in the country where such
services are necessary for the development of the
area, to meet emergency sealift requirements, or
when public interest so requires;
e. Investigate by itself or with the assistance of
other appropriate government agencies or officials,
or experts from the private sector, any matter
within its jurisdiction, except marine casualties or
accidents which shall be undertaken by the
Philippine Coast Guard;
f. Impose, fix, collect and receive in accordance
with the schedules approved by the Board, from
any shipping enterprise or other persons concerned,
such fees and other charges for the payment of its
services;
g. Inspect, at least annually, the facilities of port
and cargo operators and recommend measures for
adherence to prescribed standards of safety, quality
and operations;
h. Approve the sale, lease or transfer of
management of vessels owned by Philippine
Nationals to foreign owned or controlled
enterprises;
i. Prescribe and enforce rules and regulations for
the prevention of marine pollution in bays, harbors
and other navigable waters of the Philippines, in
coordination with the government authorities
concerned;
j. Establish and maintain, in coordination with the
appropriate government offices and agencies, a
system of regularly and promptly producing,
collating, analyzing and disseminating traffic flows,
port operations, marine insurance services and
other information on maritime matters;
k. Recommend such measures as may be necessary
for the regulation of the importation into and
exportation from the Philippines of vessels, their
equipment and spare parts;
l. Implement the rules and regulations issued by the
Board of Transportation;
m. Compile and codify all maritime laws, orders,
rules and regulations, decisions in leasing cases of
courts and the Authoritys procedures and other
requirements relative to shipping and other
shipping enterprises, make them available to the
public, and, whenever practicable to publish such
materials;
n. Delegate his powers in writing to either of the
Deputy Administrators or any other ranking officials
of the Authority; Provided, That he informs the
Board of such delegation promptly; and
o. Perform such other duties as the Board may
assign, and such acts as may be necessary and
proper to implement this Decree.
With the creation of the Ministry (now Department) of
Transportation and Communications by virtue of EO No.
546, MARINA was attached to the DOTC for policy and
program coordination on July 23, 1979. Its regulatory
function was likewise increased with the issuance of EO No.
1011 which abolished the Board of Transportation and
transferred the quasi-judicial functions pertaining to water
transportation to MARINA. On January 30, 1987, EO No. 125
(amended by EO No. 125-A) was issued reorganizing the
DOTC. The powers and functions of the department and the
agencies under its umbrella were defined, further increasing
the responsibility of MARINA to the industry. Republic Act
No. 9295, otherwise known as the The Domestic Shipping
Development Act of 2004,[33] further
strengthened MARINAs regulatory powers and functions in
the shipping sector.
Given the vast responsibilities and scope of administration of
the Authority, we are hardly persuaded by respondents
submission that respondent Bautistas designation as OIC of
MARINA was merely an imposition of additional duties related
to her primary position as DOTC Undersecretary for Maritime
Transport. It appears that the DOTC Undersecretary for
Maritime Transport is not even a member of the Maritime
Industry Board, which includes the DOTC Secretary as
Chairman, the MARINA Administrator as Vice-Chairman, and
the following as members: Executive Secretary (Office of the
President), Philippine Ports Authority General Manager,
Department of National Defense Secretary, Development
Bank of the Philippines General Manager, and the
Department of Trade and Industry Secretary.[34]
Finally, the Court similarly finds respondents theory that
being just a designation, and temporary at that, respondent
Bautista was never really appointed as OIC Administrator of
MARINA, untenable. In Binamira v. Garrucho, Jr., [35] we
distinguished between the
terms appointment  and designation, as follows:
Appointment may be defined as the
selection, by the authority vested with the power,
of an individual who is to exercise the functions
of a given office. When completed, usually with
its confirmation, the appointment results in security
of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his
office. Designation, on the other hand, connotes
merely the imposition by law of additional duties on
an incumbent official, as where, in the case before
us, the Secretary of Tourism is designated
Chairman of the Board of Directors of the Philippine
Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court
are designated by the Chief Justice to sit in the
Electoral Tribunal of the Senate or the House of
Representatives. It is said that appointment is
essentially executive while designation is legislative
in nature.
 
Designation may also be loosely defined as
an appointment because it likewise involves the
naming of a particular person to a specified public
office. That is the common understanding of the
term. However,where the person is merely
designated and not appointed, the implication is
that he shall hold the office only in a temporary
capacity and may be replaced at will by the
appointing authority. In this sense, the designation
is considered only an acting or temporary
appointment, which does not confer security of
tenure on the person named.[36] [EMPHASIS
SUPPLIED.]
L A W O N P U B L I C O F F I C E R S ( A p p o i n t m e n t ) | 56
Clearly, respondents reliance on the foregoing definitions is
misplaced considering that the above-cited case addressed the
issue of whether petitioner therein acquired valid title to the
disputed position and so had the right to security of tenure. It
must be stressed though that while the designation was in the
nature of an acting and temporary capacity, the words hold
the office were employed. Such holding of office pertains to
both appointment and designation because the appointee or
designate performs the duties and functions of the
office. The 1987 Constitution in prohibiting dual or multiple
offices, as well as incompatible offices, refers to the holding of
the office, and not to the nature of the appointment or
designation, words which were not even found in Section 13,
Article VII nor in Section 7, paragraph 2, Article IX-B. To hold
an office means to possess or occupy the same, or to be in
possession and administration,[37] which implies nothing less
than the actual discharge of the functions and duties of the
office.
The disqualification laid down in Section 13, Article VII is
aimed at preventing the concentration of powers in the
Executive Department officials, specifically the President,
Vice-President, Members of the Cabinet and their deputies
and assistants. Civil Liberties Union traced the history of the
times and the conditions under which the Constitution was
framed, and construed the Constitution consistent with the
object sought to be accomplished by adoption of such
provision, and the evils sought to be avoided or
remedied. We recalled the practice, during the Marcos
regime, of designating members of the Cabinet, their
deputies and assistants as members of the governing bodies
or boards of various government agencies and
instrumentalities, including government-owned or controlled
corporations. This practice of holding multiple offices or
positions in the government led to abuses by unscrupulous
public officials, who took advantage of this scheme for
purposes of self-enrichment. The blatant betrayal of public
trust evolved into one of the serious causes of discontent
with the Marcos regime. It was therefore quite inevitable
and in consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission would draft
into the proposed Constitution the provisions under
consideration, which were envisioned to remedy, if not
correct, the evils that flow from the holding of multiple
governmental offices and employment.[38] Our declaration
in that case cannot be more explicit:
But what is indeed significant is the fact
that although Section 7, Article IX-B already
contains a blanket prohibition against the
holding of multiple offices or employment in the
government subsuming both elective and
appointive public officials, the Constitutional
Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President,
members of the Cabinet, their deputies and
assistants from holding any other office or
employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in
the different phraseologies of the constitutional
provisions in question, the intent of the
framers of the Constitution was to impose a
stricter prohibition on the President and his
official family in so far as holding other
offices or employment in the government or
elsewhere is concerned.[39] [EMPHASIS
SUPPLIED.]
Such laudable intent of the law will be defeated and rendered [G.R. No. 130872. March 25, 1999]
sterile if we are to adopt the semantics of respondents. It
would open the veritable floodgates of circumvention of an FRANCISCO M. LECAROZ and LENLIE
important constitutional disqualification of officials in the LECAROZ, petitioners, vs. SANDIGANBAYAN
Executive Department and of limitations on the Presidents and PEOPLE OF THE
power of appointment in the guise of temporary designations PHILIPPINES, respondents.
of Cabinet Members, undersecretaries and assistant
secretaries as officers-in-charge of government agencies, DECISION
instrumentalities, or government-owned or controlled
corporations. BELLOSILLO, J.:

As to respondents contention that the concurrent FRANCISCO M. LECAROZ and LENLIE LECAROZ, father
positions of DOTC Undersecretary for Maritime Transport and son, were convicted by the Sandiganbayan of thirteen
and MARINA OIC Administrator are not incompatible offices, (13) counts of estafa  through falsification of public
we find no necessity for delving into this documents.[1] They now seek a review of their conviction as
matter. Incompatibility of offices is irrelevant in this case, they insist on their innocence.
unlike in the case of PCGG Chairman Magdangal Elma
in Public Interest Center, Inc. v. Elma .[40]  Therein we held
Petitioner Francisco M. Lecaroz was the Municipal
that Section 13, Article VII is not applicable to the PCGG
Mayor of Santa Cruz, Marinduque, while his son, his co-
Chairman or to the Chief Presidential Legal Counsel, as he
petitioner Lenlie Lecaroz, was the outgoing chairman of the
is not a cabinet member, undersecretary or assistant
Kabataang Barangay (KB) of Barangay Bagong Silang,
secretary.[41]
Municipality of Santa Cruz, and concurrently a member of its
Sangguniang Bayan (SB) representing the Federation of
WHEREFORE, the petition is GRANTED. The Kabataang Barangays.
designation of respondent Ma. Elena H. Bautista as Officer-in-
Charge, Office of the Administrator, Maritime Industry
In the 1985 election for the Kabataang Barangay Jowil
Authority, in a concurrent capacity with her position as DOTC
Red[2] won as KB Chairman of Barangay Matalaba, Santa
Undersecretary for Maritime Transport, is hereby
Cruz. Parenthetically, Lenlie Lecaroz did not run as candidate
declared UNCONSTITUTIONAL for being violative of Section
in this electoral exercise as he was no longer qualified for
13, Article VII of the 1987 Constitution and therefore, NULL
the position after having already passed the age limit fixed
and VOID.
by law.

SO ORDERED.
Sometime in November 1985 Red was appointed by
then President Ferdinand Marcos as member of the
Sangguniang Bayan of Santa Cruz representing the KBs of
the municipality. Imee Marcos-Manotoc, then the National
Chairperson of the organization, sent a telegram to Red
confirming his appointment and advising him further that
copies of his appointment papers would be sent to him in
due time through the KB Regional Office. [3] Red received the
telegram on 2 January 1986 and showed it immediately to
Mayor Francisco M. Lecaroz.

On 7 January 1986, armed with the telegram and

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

Red finally received his appointment papers sometime

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

Meanwhile, Mayor Lecaroz prepared and approved on

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

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

Perhaps subliminally aware of the paucity of evidence

to support it, and if only to buttress its finding of conspiracy,
the Sandiganbayan stressed that the two accused are father
and son. Granting that this is not even ad hominem,  we are
unaware of any presumption in law that a conspiracy exists
simply because the conspirators are father and son or
related by blood.

WHEREFORE, the petition is GRANTED. The assailed

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

SO ORDERED.

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