G.R. No.

L-19313             January 19, 1962

DOMINADOR R. AYTONA, petitioner,

vs.
ANDRES V. CASTILLO, ET AL., respondents.

R E S O L U T I O N.

BENGZON, C.J.:

Without prejudice to the subsequent promulgation of more extended opinion, the Court adopted today,
the following resolutions: .

On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona as ad interim
Governor of the Central Bank. On the same day, the latter took the corresponding oath.

On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on December
31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and cancelling all ad interim
appointment made by President Garcia after December 13, 1961, (date when he, Macapagal, had been
proclaimed elected by the Congress). On January 1, 1962, President Macapagal appointed Andres V.
Castillo as ad interim Governor of the Central Bank, and the latter qualified immediately.

On January 2, 1962, both appointed exercised the powers of their office, although Castillo informed
Aytona of his title thereto; and some unpleasantness developed in the premises of the Central Bank.
However, the next day and thereafter, Aytona was definitely prevented from holding office in the
Central Bank.

So, he instituted this proceeding which is practically, a quo warranto, challenging Castillo's right to
exercise the powers of Governor of the Central Bank. Aytona claims he was validly appointed, had
qualified for the post, and therefore, the subsequent appointment and qualification of Castillo was void,
because the position was then occupied by him. Castillo replies that the appointment of Aytona had
been revoked by Administrative Order No. 2 of Macapagal; and so, the real issue is whether the new
President had power to issue the order of cancellation of the ad interim appointments made by the past
President, even after the appointees had already qualified.1äwphï1.ñët

The record shows that President Garcia sent to the Commission on Appointments — which was not then
in session — a communication dated December 29, 1961, submitting "for confirmation" ad interim
appointments of assistant director of lands, councilors, mayors, members of the provincial boards,
fiscals, justices of the peace, officers of the army, etc.; and the name of Dominador R. Aytona as
Governor of the Central Bank occupies number 45, between a justice of the peace and a colonel of the
Armed Forces.

Another communication of President Garcia bearing the same date, submitted a list of ad interim
appointments of Foreign Affairs officers, judges, fiscals, chiefs of police, justices of the peace, mayors,
councilors, etc. number 63 of which was that of Dominador R. Aytona for Governor of the Philippines in
the Boards of International Monetary Fund, International Bank for Reconstruction and Development,
etc.
A third communication likewise dated December 29, 1961, addressed to the Commission on
Appointments submitted for confirmation 124 names of persons appointed as judges of first instance,
members of provincial boards, and boards of government corporations, fiscals, justice of the peace,
even one associate justice of this Court occupying position No. 8 and two associate justices of the Court
of Appeals (9 and 10) between an assistant of the Solicitor-General's Office, and the chairman of the
board of tax appeals of Pasay City, who in turn are followed by judges of first instance, and inserted
between the latter is the name of another associate justice of the Court of Appeals.

There were other appointments thus submitted by President Garcia on that date, December 29, 1961.
All in all, about three hundred fifty (350) "midnight" or "last minute" appointments.

In revoking the appointments, President Macapagal is said to have acted for these and other reasons: (1)
the outgoing President should have refrained from filling vacancies to give the new President
opportunity to consider names in the light of his new policies, which were approved by the electorate in
the last elections; (2) these scandalously hurried appointments in mass do not fall within the intent and
spirit of the constitutional provision authorizing the issuance of ad interim appointments; (3) the
appointments were irregular, immoral and unjust, because they were issued only upon the condition
that the appointee would immediately qualify obviously to prevent a recall or revocation by the
incoming President, with the result that those deserving of promotion or appointment who preferred to
be named by the new President declined and were by-passed; and (4) the abnormal conditions
surrounding the appointment and qualifications evinced a desire on the part of the outgoing President
merely subvert the policies of the incoming administration.

It is admitted that many of the persons mentioned in the communication to the Commission on
Appointments dated December 29, 1961, did not qualify. There is evidence that in the night of
December 29, there was a scramble in Malacañan of candidates for positions trying to get their written
appointments or having such appointments changed to more convenient places, after some last minute
bargaining. There was unusual hurry in the issuance of the appointments — which were not coursed
through the Department Heads — and in the confusion, a woman appointed judge was designated "Mr."
and a man was designated "Madam." One appointee who got his appointment and was required to
qualify, resorted to the rush of asking permission to swear before a relative official, and then never
qualified.

We are informed, it is Malacañan's practice — which we find to be logical — to submit ad interim

appointments only when the Commission on Appointments is in session. One good reason for the
practice is that only those who have accepted the appointment and qualified are submitted for
confirmation. Nevertheless, this time, Malacañan submitted its appointments on the same day they
were issued; and the Commission was not then in session; obviously because it foresaw the possibility
that the incoming President would refuse to submit later the appointees of his predecessor. As a result,
as already adverted to, some persons whose names were submitted for confirmation had not qualified
nor accepted their appointments.

Because of the haste and irregularities, some judges of first instance qualified for districts wherein no
vacancies existed, because the incumbents had not qualified for other districts to which they had been
supposedly transferred or promoted.
Referring specifically to judges who had not qualified, the course of conduct adopted by Former Chief
Justice Moran is cited. Being ambassador in Spain and desiring to return to this Court even as associate
justice, Moran was tendered an ad interim appointment thereto by President Quirino, after the latter
had lost the election to President Magsaysay, and before leaving the Presidency. Said Ambassador
declined to qualify being of the opinion that the matter should be left to the incoming newly-elected
President.

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December
30, 1961. But it is common sense to believe that after the proclamation of the election of President
Macapagal, his was no more than a "care-taker" administration. He was duty bound to prepare for the
orderly transfer of authority the incoming President, and he should not do acts which he ought to know,
would embarrass or obstruct the policies of his successor. The time for debate had passed; the
electorate had spoken. It was not for him to use powers as incumbent President to continue the political
warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The
filling up vacancies in important positions, if few, and so spaced 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 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 Presidential prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions 1 irrespective of fitness and other conditions, and thereby
deprive the new administration of an opportunity to make the corresponding appointments.

Normally, when the President makes appointments the consent of the Commission on Appointments,
he has benefit of their advice. When he makes ad interim appointments, he exercises a special
prerogative and is bound to be prudent to insure approval of his selection either previous consultation
with the members of the Commission or by thereafter explaining to them the reason such selection.
Where, however, as in this case, the Commission on Appointments that will consider the appointees is
different from that existing at the time of the appointment 2 and where the names are to be submitted
by successor, who may not wholly approve of the selections, the President should be doubly careful in
extending such appointments. Now, it is hard to believe that in signing 350 appointments in one night,
President Garcia exercised such "double care" which was required and expected of him; and therefore,
there seems to be force to the contention that these appointments fall beyond the intent and spirit of
the constitutional provision granting to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this Court resolves that
it must decline to disregard the Presidential Administrative Order No. 2, cancelling such "midnight" or
"last-minute" appointments.

Of course, the Court is aware of many precedents to the effect that once an appointment has been
issued, it cannot be reconsidered, specially where the appointee has qualified. But none of them refer to
mass ad interim appointments (three-hundred and fifty), issued in the last hours of an outgoing Chief
Executive, in a setting similar to that outlined herein. On the other hand, the authorities admit of
exceptional circumstances justifying revocation3 and if any circumstances justify revocation, those
described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the
appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity might be
successfully set up in the present situation, considering the rush conditional appointments, hurried
maneuvers and other happenings detracting from that degree of good faith, morality and propriety
which form the basic foundation of claims to equitable relief. The appointees, it might be argued,
wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public service. Needless to say, there are instances
wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.

WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby dismiss the action,
without costs.