EN BANC
G.R. No. 203372, June 16, 2015
ATTY. CHELOY E. VELICARIA- GARAFIL, Petitioner, v. OFFICE OF THE PRESIDENT AND HON. SOLICITOR GENERAL JOSE ANSELMO I. CADIZ, Respondents.
[G.R. No. 206290]
ATTY. DINDO G. VENTURANZA, Petitioner, v. OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, IN HER CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF JUSTICE, CLARO A. ARELLANO, IN HIS CAPACITY AS THE PROSECUTOR GENERAL, AND RICHARD ANTHONY D. FADULLON, IN HIS CAPACITY AS THE OFFICER-IN-CHARGE OF THE OFFICE OF THE CITY PROSECUTOR OF QUEZON CITY, Respondents.
[G.R. No. 209138]
IRMA A. VILLANUEVA AND FRANCISCA B. ROSQUITA, Petitioners, v. COURT OF APPEALS AND THE OFFICE OF THE PRESIDENT, Respondents.
[G.R. No. 212030]
EDDIE U. TAMONDONG, Petitioner, v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.
D E C I S I O N
CARPIO, J.:
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.chanroblesvirtuallawlibraryThus, for purposes of the 2010 elections, 10 March 2010 was the cut-off date for valid appointments and the next day, 11 March 2010, was the start of the ban on midnight appointments. Section 15, Article VII of the 1987 Constitution recognizes as an exception to the ban on midnight appointments only “temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” None of the petitioners claim that their appointments fall under this exception.
Issuance of EO 2
G.R. No. Date of Appointment Letter Date of Transmittal Letter Date of Receipt by MRO Date of Oath of Office Assumption of Office203372
(Atty. Velicaria- Garafil)
5 March 2010 8 March 2010 13 May 2010 22 March 2010 6 April 2010206290
(Atty. Venturanza)
23 February 2010 9 March 2010 12 March 2010 15 March 2010 15 March 2010209138
(Villanueva)
3 March 2010 4 May 2010 13 April 2010209138
(Rosquita)
5 March 2010 13 May 2010 18 March 2010 212030
(Atty. Tamondong) 1 March 2010 25 March 2010 and 6 July 2010
Effect of the Issuance of EO 2EXECUTIVE ORDER NO. 2
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER PURPOSES.
WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that “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.”;
WHEREAS, in the case of “In re: Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and Hon. Vallarta as Judges of the Regional Trial Court of Branch 62 of Bago City and Branch 24 of Cabanatuan City, respectively” (A.M. No. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to mean that the President is neither required to make appointments nor allowed to do so during the two months immediately before the next presidential elections and up to the end of her term. The only known exceptions to this prohibition are (1) temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety and in the light of the recent Supreme Court decision in the case of De Castro, et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to the Judiciary;
WHEREAS, Section 261 of the Omnibus Election Code provides that:ChanRoblesVirtualawlibrary
“Section 261. Prohibited Acts.– The following shall be guilty of an election offense:ChanRoblesVirtualawlibrary
(g) Appointments 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 to 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 the case of urgent need:ChanRoblesVirtualawlibrary
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.”;
WHEREAS, it appears on record that a number of appointments were made on or about 10 March 2010 in complete disregard of the intent and spirit of the constitutional ban on midnight appointment and which deprives the new administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is necessary to uphold the principle that appointments to the civil service must be made on the basis of merit and fitness, it is imperative to recall, withdraw, and revoke all appointments made in violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the Constitution as President of the Philippines, do hereby order and direct that:ChanRoblesVirtualawlibrary
SECTION 1. Midnight Appointments Defined. – The following appointments made by the former President and other appointing authorities in departments, agencies, offices, and instrumentalities, including government-owned or controlled corporations, shall be considered as midnight appointments:ChanRoblesVirtualawlibrary
(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010, except temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority.
(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections in violation of Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. – When necessary to maintain efficiency in public service and ensure the continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC) to perform the duties and discharge the responsibilities of any of those whose appointment has been recalled, until the replacement of the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. – All executive issuances, orders, rules and regulations or part thereof inconsistent with the provisions of this Executive Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. – If any section or provision of this executive order shall be declared unconstitutional or invalid, the other sections or provision not affected thereby shall remain in full force and effect.
SECTION 6. Effectivity. – This Executive order shall take effect immediately.
DONE in the City of Manila, this 30th day of July, in the year Two Thousand and Ten.(Sgd.) BENIGNO S. AQUINO III
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
1. Whether the appointments of the petitioners and intervenors were midnight appointments within the coverage of EO 2;This Court gave the CA the authority to resolve all pending matters and applications, and to decide the issues as if these cases were originally filed with the CA.
2. Whether all midnight appointments, including those of petitioners and intervenors, were invalid;
3. Whether the appointments of the petitioners and intervenors were made with undue haste, hurried maneuvers, for partisan reasons, and not in accordance with good faith; and
4. Whether EO 2 violated the Civil Service Rules on Appointment.33
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.G.R. No. 206290 (CA-G.R. SP No. 123659)
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner’s appointment as State Solicitor II at the OSG is hereby referred to the Office of the President which has the sole authority and discretion to pass upon the same.
SO ORDERED.35
WHEREFORE, the petition for certiorari, prohibition and mandamus [is] DENIED.G.R. No. 209138
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner’s appointment as City Chief Prosecutor of Quezon City is hereby referred to the Office of the President which has the sole authority and discretion to pass upon the same.
SO ORDERED.37
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is hereby declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Petitioners-Intervenors Irma Villanueva and Francisca Rosquita [sic] appointment[s] as Administrator for Visayas of the Board of Administrators of the Cooperative Development Authority, and Commissioner of National Commission on Indigenous Peoples [respectively,] is VALID, the same being a [sic] midnight appointment[s].G.R. No. 212030 (CA-G.R. SP No. 123664)
SO ORDERED.38
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is hereby declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie Tamondong’s appointment as Director of Subic Bay Metropolitan Authority is VALID for being a midnight appointment.
SO ORDERED.39
x x x 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.During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now retired Supreme Court Chief Justice) Hilario G. Davide, Jr. referred to this Court’s ruling in Aytona and stated that his proposal seeks to prevent a President, whose term is about to end, from preempting his successor by appointing his own people to sensitive positions.
x x x 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 revocation and if any circumstances justify revocation, those described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointee has qualified is the latter’s equitable rights. Yet it is doubtful if such equity might be successfully set up in the present situation, considering the rush conditional appointments, hurried maneuvers and other happenings detracting from that degree of good faith, morality and propriety which form the basic foundation of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant consequences to the dignity and efficiency of the public service. Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.43
MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he may prolong his rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the judiciary, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor to make appointments to these positions. We should realize that the term of the President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made about the end of his term to these sensitive positions.44The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytona’s intangible “stratagem to beat the deadline,” and also on the act of “preempting the President’s successor,” which shows a lack of “good faith, morality and propriety.” Subject to only one exception, appointments made during this period are thus automatically prohibited under the Constitution, regardless of the appointee’s qualifications or even of the President’s motives. The period for prohibited appointments covers two months before the elections until the end of the President’s term. The Constitution, with a specific exception, ended the President’s power to appoint “two months immediately before the next presidential elections.” For an appointment to be valid, it must be made outside of the prohibited period or, failing that, fall under the specified exception.
Thus, an acceptance is still necessary in order for the appointee to validly assume his post and discharge the functions of his new office, and thus make the appointment effective. There can never be an instance where the appointment of an incumbent will automatically result in his resignation from his present post and his subsequent assumption of his new position; or where the President can simply remove an incumbent from his current office by appointing him to another one. I stress that acceptance through oath or any positive act is still indispensable before any assumption of office may occur.46 (Emphasis added)The dissent proposes that this Court ignore well-settled jurisprudence during the appointment ban, but apply the same jurisprudence outside of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a process that begins with the selection by the appointing power and ends with acceptance of the appointment by the appointee, stands. As early as the 1949 case of Lacson v. Romero, this Court laid down the rule that acceptance by the appointee is the last act needed to make an appointment complete. The Court reiterated this rule in the 1989 case of Javier v. Reyes. In the 1996 case of Garces v. Court of Appeals, this Court emphasized that acceptance by the appointee is indispensable to complete an appointment. The 1999 case of Bermudez v. Executive Secretary, cited in the ponencia, affirms this standing rule in our jurisdiction, to wit:chanRoblesvirtualLawlibraryThe dissent’s assertion creates a singular exception to the well-settled doctrine that appointment is a process that begins with the signing of the appointment paper, followed by the transmittal and receipt of the appointment paper, and becomes complete with the acceptance of the appointment. The dissent makes the singular exception that during the constitutionally mandated ban on appointments, acceptance is not necessary to complete the appointment. The dissent gives no reason why this Court should make such singular exception, which is contrary to the express provision of the Constitution prohibiting the President from making appointments during the ban. The dissent’s singular exception will allow the President, during the ban on appointments, to remove from office incumbents without cause by simply appointing them to another office and transmitting the appointment papers the day before the ban begins, appointments that the incumbents cannot refuse because their acceptance is not required during the ban. Adoption by this Court of the dissent’s singular exception will certainly wreak havoc on the civil service.“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.”47
Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., “the choice of a person to fill an office constitutes the essence of his appointment,” and Mr. Justice Malcolm adds that an “[a]ppointment to office is intrinsically an executive act involving the exercise of discretion.” In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we held:chanRoblesvirtualLawlibraryTransmittalThe 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 xIndeed, 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.50
a. Receive, record and screen all incoming correspondence, telegrams, documents and papers, andThe Records Division was elevated to an Office in 1975, with the addition of the following functions:chanRoblesvirtualLawlibrary
(1) Forward those of a personal and unofficial nature to the President’s Private Office; and
(2) Distribute those requiring action within the Office or requiring staff work prior to presentation to the President to the appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside the Office to assure that prompt replies are made and copies thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal papers of the President, and keep them in such condition as to meet the documentary and reference requirements of the Office.
e. Keep and maintain a filing and records system for acts, memoranda, orders, circulars, correspondence and other documents affecting the Office for ready reference and use.
f. Issue certified true copies of documents on file in the Division in accordance with prevailing standard operating procedure.
g. Keep a separate record of communications or documents of confidential nature.
h. Have custody of the Great Seal of the Republic of the Philippines.
i. Prepare and submit to the approving authority, periodic disposition schedules of non-current records which have no historical, legal and/or claim value.
j. With the approval of the Executive Secretary, assist other offices in the installation or improvement of their records management system; and
k. Give instructions or deliver lectures and conduct practical training to in-service trainees from other offices and to students from educational institutions on records management.51
1. Maintain and control vital documents and essential records to support the functions of the OP in its day to day activities;For purposes of verification of the appointment paper’s existence and authenticity, the appointment paper must bear the security marks (i.e., handwritten signature of the President, bar code, etc.) and must be accompanied by a transmittal letter from the MRO.
2. Monitor the flow of communications from their time of receipt up to their dispatch;
3. Service the documentary, information and reference requirements of top management and action officers of the OP, and the reference and research needs of other government agencies and the general public;
4. Ensure the proper storage, maintenance, protection and preservation of vital and presidential documents, and the prompt disposal of obsolete and valueless records;
5. Effect the prompt publication/dissemination of laws, presidential issuances and classified documents;
6. Provide computerized integrated records management support services for easy reference and retrieval of data and information; and
7. To be able to represent the OP and OP officials in response to Subpoena Duces Tecum and Testificandum served by courts and other investigating bodies.52
Q: What are the functions of the MRO?The MRO’s exercise of its mandate does not prohibit the President or the Executive Secretary from giving the appointment paper directly to the appointee. However, a problem may arise if an appointment paper is not coursed through the MRO and the appointment paper is lost or the appointment is questioned. The appointee would then have to prove that the appointment paper was directly given to him.
A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1) receive, record, and screen all incoming correspondence, telegrams, documents, and papers; (2) follow up on correspondence forwarded to entities outside the Office of the President (“OP”) to assure that prompt replies are made and copies thereof furnished the OP; (3) timely dispatch all outgoing documents and correspondence; (4) have custody of records of the OP, except personal papers of the President, and keep them in such condition as to meet the documentary and reference requirements of the Office; (5) keep and maintain a filing and records system for Acts, Memoranda, Orders, Circulars, correspondence, and other pertinent documents for ready reference and use; (6) issue certified copies of documents on file as requested and in accordance with prevailing standard operating procedures; (7) maintain and control vital documents and essential records to support the OP in its day-to-day activities; (8) monitor the flow of communications from the time of receipt up to their dispatch; and (9) other related functions.
x x x x
Q: As you previously mentioned, the MRO is the custodian of all documents emanating from Malacañang pursuant to its mandate under Memorandum Order No. 1, Series of 1958. Is the MRO required to follow a specific procedure in dispatching outgoing documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment paper signed by the President?
A: Yes. It is observed for the release of the original copy of the appointment paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of the original copy of the appointment paper signed by the President?
A: After an appointment paper is signed by the President, the Office of the Executive Secretary (OES) forwards the appointment paper bearing the stamp mark, barcode, and hologram of the Office of the President, together with a transmittal letter, to the MRO for official release. Within the same day, the MRO sends the original copy of the appointment paper together with the transmittal letter and a delivery receipt which contains appropriate spaces for the name of the addressee, the date released, and the date received by the addressee. Only a photocopy of the appointment is retained for the MRO’s official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
x x x x
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?
A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35, Series of 2003 and Memorandum Circular No. 133, Series of 2007.
x x x x
Q: Do you exercise any discretion in the release of documents forwarded to the MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents and correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is it officially released by the MRO to the department or agency concerned?
A: The document is released within the day by the MRO if the addressee is within Metro Manila. For example, in the case of the appointment paper of Dindo Venturanza, the OES forwarded to the MRO on March 12, 2010 his original appointment paper dated February 23, 2010 and the transmittal letter dated March 9, 2010 prepared by the OES. The MRO released his appointment paper on the same day or on March 12, 2010, and was also received by the DOJ on March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or department within Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot issue a certified true copy of the same because as far as the MRO is concerned, it does not exist in our official records, hence, not an official document from the Malacañang. There is no way of verifying the document’s existence and authenticity unless the document is on file with the MRO even if the person who claims to have in his possession a genuine document furnished to him personally by the President. As a matter of fact, it is only the MRO which is authorized to issue certified true copies of documents emanating from Malacañan being the official custodian and central repository of said documents. Not even the OES can issue a certified true copy of documents prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called “gatekeeper” of the Malacañang Palace. All incoming and outgoing documents and correspondence must pass through the MRO. As the official custodian, the MRO is in charge of the official release of documents.
Q: What if an appointment paper was faxed by the Office of the Executive Secretary to the appointee, is that considered an official release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the appointment paper to the appointee. That appointment paper is, at best, only an “advanced copy.”
Q: Assuming the MRO has already received the original appointment paper signed by the President together with the transmittal letter prepared by the OES, you said that the MRO is bound to transmit these documents immediately, that is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original appointment paper has already been forwarded to the MRO, recalls the appointment and directs the MRO not to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO, was there any instance when it was directed to recall the appointment and retrieve the documents already transmitted?
A: Yes, but only in a few instances. Sometimes, when the MRO messenger is already in transit or while he is already in the agency or office concerned, we get a call to hold the delivery.
Q: You previously outlined the procedure governing the transmittal of original copies of appointment papers to the agency or office concerned. Would you know if this procedure was followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure has been followed. However, it was unusually disregarded when the appointments numbering more than 800 were made by then President Arroyo in March 2010. The MRO did not even know about some of these appointments and we were surprised when we learned about them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than 800 persons in the month of March alone. How were you able to determine this number?
A: My staff counted all the appointments made by then President Arroyo within the period starting January 2009 until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by then President Arroyo in the month of March 2010 compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the graphical representation thereof.
Q: If those documents will be shown to you, will you be able to recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of presidential appointees per month since January 2009 until June 2010, and a graphical representation thereof. Can you go over these documents and tell us the relation of these documents to the ones you previously mentioned?
A: These are [sic] the Certification with the table of statistics I prepared after we counted the appointments, as well as the graph thereof.
x x x x
Q: Out of the more than 800 appointees made in March 2010, how many appointment papers and transmittal letters were released through the MRO?
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which were not released through the MRO but apparently through the OES, there were portions on the stamp of the OES which supposedly indicated the date and time it was actually received by the agency or office concerned but were curiously left blank, is this regular or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt attached to the transmittal letter is filled out completely because the dates when the original appointment papers were actually received are very material. It is a standard operating procedure for the MRO personnel to ask the person receiving the documents to write his/her name, his signature, and the date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers apparently released by the OES are concerned, what is the actual date when the agency or the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were actually received because the date and time were deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal letters or the appointment papers is the actual date when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the person who received these documents did not indicate the date and time when it was received because these details are very important.53
Your Honors, we respectfully request for the following markings to be made:ChanRoblesVirtualawlibraryThe testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval Division of the MRO, supports Dimaandal’s counsel’s manifestation that the transmittal of petitioners’ appointment papers is questionable.
1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO VENTURANZA dated March 9, 2010 as Exhibit “2-F” for the respondents;
B) The delivery receipt attached in front of the letter bearing the date March 12, 2010 as Exhibit “2-F-1”;
C) The Appointment Paper of DINDO VENTURANZA dated February 23, 2010 as Exhibit “2-G” for the respondents;
2. A) The Transmittal Letter pertinent to the appointment of CHELOY E. VELICARIA-GARAFIL turned over to the MRO on May 13, 2010 consisting of seven (7) pages as Exhibits “2-H,” “2-H-1,” “2-H-2,” “2-H-3,” “2-H-4,” “2-H-5,” and “2-H-6” respectively for the respondents;i. The portion with the name “CHELOY E. VELICARIA- GARAFIL” as “State Solicitor II, Office of the Solicitor General” located on the first page of the letter as Exhibit “2-H-7;”
ii. The portion rubber stamped by the Office of the Executive Secretary located at the back of the last page of the letter showing receipt by the DOJ with blank spaces for the date and time when it was actually received as Exhibit “2-H-8;”
B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL dated March 5, 2010 as Exhibit “2-I” for the respondents;
x x x x
4. A) The Transmittal Letter pertinent to the appointment of EDDIE U. TAMONDONG dated 8 March 2010 but turned over to the MRO only on May 6, 2010 consisting of two (2) pages as Exhibits “2-L” and “2-L-1” respectively for the respondents;
(a) The portion with the name “EDDIE U. TAMONDONG” as “Member, representing the Private Sector, Board of Directors” as Exhibit “2-L-2”;
(b) The portion rubber stamped by the Office of the Executive Secretary located at the back of the last page of the letter showing receipt by Ma. Carissa O. Coscuella with blank spaces for the date and time when it was actually received as Exhibit “2-L-3”;
x x x x
8. A) The Transmittal Letter pertinent to the appointments of x x x FRANCISCA BESTOYONG-ROSQUITA dated March 8, 2010 but turned over to the MRO on May 13, 2010 as Exhibit “2-T” for the respondents;
x x x x
(c) The portion with the name “FRANCISCA BESTOYONG-ROSQUITA” as “Commissioner, Representing Region I and the Cordilleras” as Exhibit “2-T-3;”
(d) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing receipt by Masli A. Quilaman of NCIP-QC on March 15, 2010 as Exhibit “2-T-4;”
x x x x
D) The Appointment Paper of FRANCISCA BESTOYONG- ROSQUITA dated March 5, 2010 as Exhibit “2-W” for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of IRMA A. VILLANUEVA as Administrator for Visayas, Board of Administrators, Cooperative Development Authority, Department of Finance dated March 8, 2010 as Exhibit “2-X” for the respondents;
(a) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing receipt by DOF with blank spaces for the date and time when it was actually received as Exhibit “2-X-1;”
B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010 as Exhibit “2-Y” for the respondents.54
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State Solicitor II of the Office of the Solicitor General, was her appointment paper released through the MRO?The possession of the original appointment paper is not indispensable to authorize an appointee to assume office. If it were indispensable, then a loss of the original appointment paper, which could be brought about by negligence, accident, fraud, fire or theft, corresponds to a loss of the office.56 However, in case of loss of the original appointment paper, the appointment must be evidenced by a certified true copy issued by the proper office, in this case the MRO.
A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely turned over to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was already stamped “released” by the Office of the Executive Secretary, but the date and time as to when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
x x x x
Q: In the case of Eddie U. Tamondong, who was appointed as member of the Board of Directors of Subic Bay Metropolitan Authority, was her [sic] appointment paper released through the MRO?
A: No. His appointment paper dated March 1, 2010, with its corresponding transmittal letter, was merely turned over to the MRO on May 6, 2010. The transmittal letter that was turned over to the MRO was already stamped “released” by the Office of the Executive Secretary, but the date and time as to when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
x x x x
Q: In the case of Francisca Bestoyong-Resquita who was appointed as Commissioner of the National Commission on Indigenous Peoples, representing Region 1 and the Cordilleras, was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely turned over to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was already stamped “released” by the Office of the Executive Secretary and received on March 15, 2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
x x x x
Q: In the case of Irma A. Villanueva who was appointed as Administrator for Visayas of the Cooperative Development Authority, was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its corresponding transmittal letter, was merely turned over to the MRO on May 4, 2010. The transmittal letter that was turned over to the MRO was already stamped “released” by the Office of the Executive Secretary, but the date and time as to when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.55
The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, “there is no power in this country which can compel a man to accept an office.” Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as such fiscal of Negros Oriental.59
Paragraph (b), Section 1 of EO 2 considered as midnight appointments those appointments to offices that will only be vacant on or after 11 March 2010 even though the appointments are made prior to 11 March 2010. EO 2 remained faithful to the intent of Section 15, Article VII of the 1987 Constitution: the outgoing President is prevented from continuing to rule the country indirectly after the end of his term.
Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount to acceptance of the appointment.60 An oath of office is a qualifying requirement for a public office, a prerequisite to the full investiture of the office.61chanrobleslaw
Javier v. Reyes62 is instructive in showing how acceptance is indispensable to complete an appointment. On 7 November 1967, petitioner Isidro M. Javier (Javier) was appointed by then Mayor Victorino B. Aldaba as the Chief of Police of Malolos, Bulacan. The Municipal Council confirmed and approved Javier’s appointment on the same date. Javier took his oath of office on 8 November 1967, and subsequently discharged the rights, prerogatives, and duties of the office. On 3 January 1968, while the approval of Javier’s appointment was pending with the CSC, respondent Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the CSC a letter to recall Javier’s appointment. Reyes also designated Police Lt. Romualdo F. Clemente as Officer-in-Charge of the police department. The CSC approved Javier’s appointment as permanent on 2 May 1968, and even directed Reyes to reinstate Javier. Reyes, on the other hand, pointed to the appointment of Bayani Bernardo as Chief of Police of Malolos, Bulacan on 4 September 1967. This Court ruled that Javier’s appointment prevailed over that of Bernardo. It cannot be said that Bernardo accepted his appointment because he never assumed office or took his oath.
Excluding the act of acceptance from the appointment process leads us to the very evil which we seek to avoid (i.e., antedating of appointments). Excluding the act of acceptance will only provide more occasions to honor the Constitutional provision in the breach. The inclusion of acceptance by the appointee as an integral part of the entire appointment process prevents the abuse of the Presidential power to appoint. It is relatively easy to antedate appointment papers and make it appear that they were issued prior to the appointment ban, but it is more difficult to simulate the entire appointment process up until acceptance by the appointee.
Petitioners have failed to show compliance with all four elements of a valid appointment. They cannot prove with certainty that their appointment papers were transmitted before the appointment ban took effect. On the other hand, petitioners admit that they took their oaths of office during the appointment ban.
Petitioners have failed to raise any valid ground for the Court to declare EO 2, or any part of it, unconstitutional. Consequently, EO 2 remains valid and constitutional.
WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are DENIED, and the petition in G.R. No. 209138 is DISMISSED. The appointments of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza (G.R. No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and Atty. Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We DECLARE that Executive Order No. 2 dated 30 July 2010 is VALID and CONSTITUTIONAL.
SO ORDERED.cralawlawlibrary
Sereno, C. J., Velasco, Jr., Del Castillo, Villarama, Jr., Reyes, and Perlas-Bernabe, JJ., concur.
Leonardo-De Castro, J., I join the dissent of Justice Brion.
Brion, J., see Concurring and Dissenting Opinion.
Peralta, J., I join J. Brion's dissent and on official leave.
Bersamin, J., I join the dissent of J. Brion.
Perez, J., I join J. Brion in his dissent.
Mendoza, J., I join the dissent of J. Brion.
Leonen, J., on official leave.
Jardeleza, J., no part.
Endnotes:
1 Under Rule 45 of the Rules of Court.
2Rollo (G.R. No. 203372), pp. 45-67. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
3 Under Rule 45 of the Rules of Court.
4Rollo (G.R. No. 206290), pp. 10-40. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
5 Id. at 42-47. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
6 Under Rule 65 of the Rules of Court.
7Rollo (G.R. No. 209138), pp. 38-60. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
8 The following cases were consolidated in the CA: CA-G.R. SP No. 123662 (Atty. Velicaria- Garafil), CA-G.R. SP No. 123663 (Bai Omera D. Dianalan-Lucman), and CA-G.R. SP No. 123664 (Atty. Tamondong).
9 Under Rule 45 of the Rules of Court.
10Rollo (G.R. No. 212030), pp. 30-53. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
11 Id. at 59-63. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
12 In this Resolution, the following were listed as petitioners-intervenors: Atty. Jose Sonny G. Matula, member of the Social Security Commission and National Vice President of Federation of Free Workers; Ronnie M. Nismal, Alvin R. Gonzales, Jomel B. General, Alfredo E. Maranan, Exequiel V. Bacarro, and Juanito S. Facundo, Board Members, union officers, or members of the Federation of Free Workers.
13Rollo (G.R. No. 203372), p. 99.
14Rollo (G.R. No. 206290), p. 115.
15 Id. at 121.
16 Id. at 118.
17 Id. at 119.
18 Id. at 120.
19Rollo (G.R. No. 209138), p. 25.
20 Id. at 26.
21Rollo (G.R. No. 212030), p. 72.
22 Id. at 13.
23 Id. at 73.
24 Id. at 13.
25http://www.gov.ph/2010/07/30/executive-order-no-2/ (accessed 15 June 2015). (Boldfacing and underscoring supplied)
26Rollo (G.R. No. 203372), pp. 19-21.
27Rollo (G.R. No. 206290), pp. 55-57.
28 G.R. No. 192991 was titled “Atty. Jose Arturo Cagampang De Castro, J.D., in his capacity as Assistant Secretary, Department of Justice v. Office of the President, represented by Executive Secretary Paquito N. Ochoa, Jr.”
29Rollo (G.R. No. 209138), p. 5.
30Rollo (G.R. No. 212030), p. 13.
31 G.R. No. 192987, Eddie U. Tamondong v. Executive Secretary Paquito N. Ochoa, Jr.; G.R. No. 193327, Atty. Cheloy E. Velicaria-Garafil v. Office of the President, represented by Hon. Executive Secretary Paquito N. Ochoa, Jr., and Solicitor General Jose Anselmo L. Cadiz; G.R. No. 193519, Bai Omera D. Dianalan-Lucman v. Executive Secretary Paquito N. Ochoa, Jr.; G.R. No. 193867, Atty. Dindo G. Venturanza, as City Prosecutor of Quezon City v. Office of the President, represented by President of the Republic of the Philippines Benigno Simeon C. Aquino, Executive Secretary Paquito N. Ochoa, Jr., et al.; G.R. No. 194135, Manuel D. Andal v. Paquito N. Ochoa, Jr., as Executive Secretary amd Junio M. Ragrario; G.R. No. 194398, Atty. Charito Planas v. Executive Secretary Paquito N. Ochoa, Jr., Tourism Secretary Alberto A. Lim and Atty. Apolonio B. Anota, Jr.
32 Intervenors were: Dr. Ronald L. Adamat, in his capacity as Commissioner, National Commission on Indigenous Peoples; Angelita De Jesus-Cruz, in her capacity as Director, Subic Bay Metropolitan Authority; Atty. Jose Sonny G. Matula, Member of the Social Security Commission National Vice President of Federation of Free Workers; Ronnie M. Nismal, Alvin R. Gonzales, Jomel B. General, Alfredo E. Maranan, Exequiel V. Bacarro, and Juanito S. Facundo, as Board Members, union officers or members of the Federation of Free Workers; Atty. Noel K. Felongco in his capacity as Commissioner of the National Commission on Indigenous Peoples; Irma A. Villanueva, in her capacity as Administrator for Visayas, Board of Administrators of the Cooperative Development Authority; and Francisca B. Rosquita, in her capacity as Commissioner of the National Commission on Indigenous Peoples.
33Rollo (G.R. No. 203372), p. 80.
34 544 Phil. 525, 531 (2007), citing Davide v. Roces, 160-A Phil. 430 (1975).
35Rollo (G.R. No. 203372) , p. 66.
36 Supra note 34.
37Rollo (G.R. No. 206290), p. 39.
38Rollo (G.R. No. 209138), p. 60.
39Rollo (G.R. No. 212030), p. 52.
40 See Rule 45, Section 2. Villanueva and Rosquita only had until 2 October 2013 to file their appeal. They filed their petition on 7 October 2013.
41 Dissenting Opinion of Justice Arturo Brion, p. 43.
42 No. L-19313, 19 January 1962, 4 SCRA 1.
43 Id. at 10-11.
44http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/24/51487 (accessed 15 June 2015).
45 Dissent, pp. 26-27, citing Bermudez v. Executive Secretary Torres, 370 Phil. 769, 776 (1999) citing Aparri v. Court of Appeals, 212 Phil. 215, 222-223 (1984).
46 Dissent, p. 37.
47 Separate Concurring Opinion of Justice Antonio T. Carpio in Re: Seniority Among the Four (4) Most Recent Appointments to the Position of Associate Justices of the Court of Appeals, 646 Phil. 1, 17 (2010), citing Lacson v. Romero, 84 Phil. 740 (1949); Javier v. Reyes, 252 Phil. 369 (1989); Garces v. Court of Appeals, 328 Phil. 403 (1996); and Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).
48 See Section 16, Chapter 5, Title I, Book III, Executive Order No. 292, Administrative Code of 1987.
49 See Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).
50Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223 SCRA 568, 579-580. Citations omitted.
51Rollo (G.R. No. 206290), pp. 526-527.
52 Id. at 527.
53 Id. at 455-471.
54 Id. at 460-466.
55 Judicial Affidavit of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval Division of the Malacañang Records Office. Id. at 410-412, 416-417.
56 See Marbury v. Madison, 5 U.S. 137 (1803).
57 See Garces v. Court of Appeals, 328 Phil. 403 (1996).
58 84 Phil. 740 (1949).
59 Id. at 745.
60 See Javier v. Reyes, 252 Phil. 369 (1989). See also Mitra v. Subido, 128 Phil. 128 (1967).
61Chavez v. Ronidel, 607 Phil. 76 (2009), citing Mendoza v. Laxina, Sr., 453 Phil. 1013, 1026-1027 (2003); Lecaroz v. Sandiganbayan, 364 Phil. 890, 904 (1999).
62 252 Phil. 369 (1989).
BRION, J.:
SECTION 1. Midnight Appointments Defined. – The following appointments made by the former President and other appointing authorities in departments, agencies, offices, and instrumentalities, including government-owned or -controlled corporations, shall be considered as midnight appointments:ChanRoblesVirtualawlibraryC. Subsequent Events
(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010, except temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority. (b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that would be vacant only after March 11, 2010. (c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections in violation of Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. – When necessary to maintain efficiency in public service and ensure the continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC) to perform the duties and discharge the responsibilities of any of those whose appointment has been recalled, until the replacement of the OIC has been appointed and qualified.chanroblesvirtuallawlibrary
Because the issues raised “will require the assessment of different factual circumstances attendant to each of the appointments made,”32 the Court decided to refer the petitions to the Court of Appeals (CA) to “resolve all pending matters and applications, and to decide the issues as if these cases have been originally commenced”33 with the CA.34chanrobleslaw
- Whether the appointment of the petitioners and intervenors were midnight appointments within the coverage of EO 2;
- Whether all midnight appointments, including those of the petitioners and intervenors, were invalid;
- Whether the appointments of the petitioners and intervenors were made with undue haste, hurried maneuvers, for partisan reasons, and not in accordance with good faith;
- Whether the appointments of the petitioners and intervenors were irregularly made; and
- Whether EO 2 violated the Civil Service Rules on Appointment.31
I do solemnly swear [or affirm] that I will faithfully and conscientiously fulfill my duties as President [or Vice-President or Acting President] of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God. [In case of affirmation, last sentence will be omitted.]73To fulfill the oath to “preserve and defend [the] Constitution, [and] execute its laws,” the President, in particular, and the Executive branch, in general, necessarily must interpret the provisions of the Constitution or of the particular law they are enforcing.74 This power of legal interpretation uniquely arises from the legal principle that the grant of executive power to the President is a grant of all powers necessary for the exercise of the power expressly given.75chanrobleslaw
As Section 15, Article VII of the Constitution has not been previously interpreted by the Court,85 the present case affords us the chance to do so under the Court’s power and duty of judicial review to determine the constitutionality of the Executive’s interpretation of this provision.86chanrobleslawChapter 2 - Ordinance Power
Section 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. (emphasis supplied)
The filling of 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 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 deprive the new administration of an opportunity to make the corresponding appointments.In effect, the Court upheld the incoming President’s order revoking the en masse appointments made by the outgoing President. The Court accomplished this, not on the basis of any express constitutional or statutory prohibition against those appointments, but because the outgoing President “abused” the presidential power of appointment. The presence of “abuse” was found based on the circumstances attendant to Aytona’s appointment.x x x x
Of course, the Court is aware of many precedents to the effect that once an appointment has been issued, it cannot be reconsidered, especially 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 revocation and if any circumstances justify revocation, those described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity might be successfully set up in the present situation, considering the rush conditional appointments, hurried maneuvers and other happenings detracting from that degree of good faith, morality and propriety which form the basic foundation of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant consequences to the dignity and efficiency of the public service. Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.chanroblesvirtuallawlibrary
Whether the appointments of the petitioners and intervenors were made with undue haste, hurried maneuvers, for partisan reasons, and not in accordance with good faith,in our January 31, 2012 Resolution largely becomes a non-issue. The CA’s failure to resolve these matters is consequently not fatal.102chanrobleslaw
Section 16. Power of Appointment. - The President shall exercise the power to appoint such officials as provided for in the Constitution and laws.chanroblesvirtuallawlibraryUnder these terms and structure, the term “appointment” apparently does not automatically equate to a process and pertain to the President’s act or exercise of his power of appointment. Thus, when interpreting the word “appointment” in cases before the Court, we must consider which of the two should be applied considering the factual and legal settings of each case.
Section 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. (emphasis supplied)This express wording leads us away from an interpretation of the provision as a process that would involve the appointee and his or her acts within the scope of the appointment ban. For one, Section 15, Article VII of the 1987 Constitution is directed only against an outgoing President and against no other. By providing that the President shall not make appointments within the specified period, the Constitution could not have barred the President from doing things that are not within his power to accomplish as appointing authority, such as the acts required or expected of the appointee.
For purposes of completion of the appointment process, the appointment is complete when the commission is signed by the executive, and sealed if necessary, and is ready to be delivered or transmitted to the appointee. Thus, transmittal of the commission is an act which is done after the appointment has already been completed. It is not required to complete the appointment but only to facilitate the effectivity of the appointment by the appointee’s receipt and acceptance thereof.The issue before us, however, is not as simple as the issue of seniority of the justices of the CA – a matter that is largely internal to its members. Far more important than this, the issue before us directly relates to the constitutional limitation on the President’s exercise of his appointing power. The applicable law in In Re: Seniority is clearly worded on the proper basis of seniority in the CA, i.e., the date of appointment.126 This is significantly very much unlike the Constitution’s language that commands the President not to “make appointments.”
For purposes of appointments to the judiciary, therefore, the date the commission has been signed by the President (which is the date appearing on the face of such document) is the date of the appointment. Such date will determine the seniority of the members of the Court of Appeals in connection with Section 3, Chapter I of BP 129, as amended by RA 8246. [Italics and emphasis supplied.]
In 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, Cabanatuan City, respectively (In re Valenzuela),128 we ruled that Section 15, Article VII is directed against two types of appointments, viz.: (i) those made for buying votes and (ii) those made for partisan considerations.129chanrobleslaw
- the appointee accepted, or took his oath, or assumed office at the time when the constitutional ban is already in effect;
- the appointment will take effect or where the office involved will be vacant during the effectivity of the constitutional ban;
- the appointment or promotion was made in violation of Section 261 of the Omnibus Election Code.
Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30, 1961. But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a “caretaker” administration. He was duty 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.chanroblesvirtuallawlibraryTo be sure, the broad discretion given the appointing power may be limited by the Constitution135 and by law.136 Nonetheless, any limitation of the exercise of this broad power is generally strictly construed. Correspondingly, any undue expansion of a textually evident limitation under Section 15, Article VI, would137 amount to judicial legislation.
Q: What is the effect if a document is released by an office or department within Malacañan without going through the MRO?However, contrary to the respondents’ claim,146failure to course an appointment through the MRO for official release is not fatal. Otherwise, an office147 in the Executive department particularly within the Office of the President can make or break an appointment by its own inaction or even contrary to the instruction of the Chief Executive,148 thereby emasculating the President’s power of control and negating his power of appointment.
A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot issue a certified true copy of the same because as far as the MRO is concerned, it does not exist in our official records, hence, not an official document from the Malacañan. There is no way of verifying the document’s existence and authenticity unless the document is on file with the MRO even if the person who claims to have in his possession a genuine document furnished to him personally by the President. As a matter of fact, it is only the MRO which is authorized to issue certified true copies of documents emanating from Malacañan being the official custodian and central repository of said documents. Not even the OES can issue a certified true copy of documents prepared by them (boldfacing supplied).
Q: Why do you say that?
A: Because the MRO is the so-called “gate-keeper” of the Malacañan Palace. All incoming and outgoing documents and correspondence must pass through the MRO. As the official custodian, the MRO is in charge of the official release of documents.x x x x
Q: Assuming the MRO has already received the original appointment paper signed by the President together with the transmittal letter prepared by the OES, you said that the MRO is bound to transmit these documents immediately, that is, on the same day?
A: Yes.chanroblesvirtuallawlibrary
this mandated period banned by the Constitution, no less, should enjoin not only the act of the President in making appointments, but all other acts that would give effect or allow the furtherance of the President’s prohibited act of making appointment within the same prohibited period, if only to breathe life and give full effect to the spirit behind the Constitutional provision limiting the power of the President. This deduction proceeds from the settled rule that an appointment, in order to be effective, requires the acceptance of the appointee.The CA’s reasoning, unfortunately, does not validate its conclusion. The CA upheld the extension of the scope of the prohibition to the acts of the appointee on the reasoning that these acts “give effect or allow the furtherance of the President’s prohibited act of making appointments within the same prohibited period.” The CA ruling obviously failed to consider the situation where the making and issuance of the appointments were made outside of the prohibited period.x x x x
In requiring that the acceptance of the appointment, i.e., the taking of an oath and the assumption of office, be also done prior to the ban, E.O. No. 2 merely implements in full force the Constitutional considerations of practicality and logic enshrined in the provision on midnight appointments. Since the appointment of the President only becomes effective upon the appointee’s acceptance, it stands to reason that the entire process completing an appointment must be done prior to the Constitutionally set period.155chanrobleslaw
What worth is it to prohibit the President from making an appointment that is not effective anyway? It would be useless to prohibit an incomplete and ineffective appointment. To rule otherwise is to make the intent of the Constitutional provision not only purely illusory, but would also open the floodgates to possible abuse. The outgoing President may x x x [simply] antedate [the] appointment papers to make it appear that they were legally signed prior to the ban[.]
Endnotes:
1 Under Rule 45 of the Rules of Court.
2 Under Rule 65 of the Rules of Court.
3 Both dated August 31, 2012 for petitioner in G.R. No. 203372 (rollo, p. 45) and G.R. No. 206290 (rollo, p. 10); and August 28, 2013 for petitioners in G.R. No. 209138 (rollo, p. 39).
4Rollo (G.R. No. 203372), p. 16.
5 Id. at 99.
6 CA rollo, Volume I, p. 948; rollo (G.R. No. 206290), p. 583.
7Rollo (G.R. No. 203372), pp. 92-93.
8 Id. at 18.
9Rollo (G.R. No. 206290), p. 410.
10 Id. at 52-53.
11 Id. at 115.
12 Id. at 53.
13 Id. at 121 and 461.
14 Id. at 116-117.
15Rollo (G.R. No. 209138), p. 25.
16 Id. at 26.
17 Id. at 4.
18Rollo (G.R. No. 206290), pp. 611 and 607.
19 Id. at 416.
20 Id. at 71.
21 Id. at 72.
22 Id. at 73.
23 Comment in G.R. No. 212030, p. 2.
24Rollo (G.R. No. 203372), pp. 19-20.
25Rollo (G.R. No. 193327), pp. 56-57.
26Rollo (G.R. No. 209138), p. 29.
27 Id. at 5.
28Rollo (G.R. No. 212030), p. 13.
29 G.R. No. 192987 (Eddie Tamondong v. Executive Secretary Paquito N. Ochoa Junior); G.R. No. 193519 (Bai-Omera D. Dianalan-Lucman v. Executive Secretary Paquito N. Ochoa, Jr.); G.R. No. 193867 (Atty. Dindo G. Venturanza, as City Prosecutor of Quezon City v. Office of the President); G.R. No. 194135 (Manuel D. Andal v. Paquito N. Ochoa, Jr.); and G.R. No. 194398 (Atty. Charito Planas v. Executive Secretary Paquito N. Ochoa Jr.).
30 Dr. Ronald L. Adamat, Angelita De Jesus-Cruz, Jose Sonny G. Matula, Noel F. Felongco.
31Rollo (G.R. No. 203372), p. 80.
32 Id.
33 Id.
34 CA-G.R. SP No. 123662.
35 CA Decision, pp. 18-19 (G.R. No. 203372); CA Decision, pp. 26-27 (G.R. No. 206290).
36 CA Decision, p. 19 (G.R. No. 203372) CA Decision, p. 27 (G.R. No. 206290).
37 G.R. No. 160791, February 13, 2007, 515 SCRA 601, 603-604.
38Rollo (G.R. No. 203372), p. 29; rollo (G.R. No. 206290), p. 68; rollo (G.R. No. 209138), p. 19.
39Rollo (G.R. No. 203372), pp. 24 and 29; rollo (G.R. No. 209138), pp. 7-8.
40 Citing In Re: Seniority Among the Four 94) Most Recent Appointments to the Position of Associate Justices of the Court of Appeals, A.M. No. 10-4-22-SC, September 28, 2010, 631 SCRA 382, 387, citing Valencia v. Peralta, Jr., 118 Phil. 691 (1963).
41Rollo (G.R. No. 206290), pp. 59-60.
42Rollo (G.R. No. 209138), pp. 10-11, 13.
43 Citing Rule IV, Section 1 of 1998 Revised Omnibus Rules on Appointment and Other Personnel Actions.
44 Petitioner Garafil particularly claims that “[o]n March 5, 2010, President Gloria Macapagal-Arroyo issued the appointment letter of the petitioner… the act being prohibited is the president or acting president’s act of making appointments” (Rollo [G.R. No. 203372], p. 17). On the other hand, petitioner Venturanza claims that “an appointment is perfected upon its issuance by the appointing authority which in this case is on 23 February 2010” (Rollo [G.R. No. 206290], p. 60). Petitioners Villanueva and Rosquita claim that “Indeed, an appointment becomes complete when the last act required by law of the appointing power has been performed x x x In the [present] case, the ‘last act’ required of the appointing power – President Arroyo – was her issuance of the appointments.” (Rollo [G.R. No. 209138], p. 11).
45 Citing the legal opinion of the CSC Policies Office; rollo (G.R. No. 209138), p. 13.
46Rollo (G.R. No. 212030), p. 20.
47Rollo (G.R. No. 203372), p. 21; rollo (G.R. No. 206290), pp. 60-62; rollo (G.R. No. 209138), pp. 11-12.
48Rollo (G.R. No. 203372), pp. 33-35.
49 Id. at 25-26.
50 Citing Sales v. Carreon, G.R. No. 160791, February 13, 2007, 515 SCRA 601, 603-604.
51Rollo (G.R. No. 203372), pp. 25-26; rollo (G.R. No. 206290), pp. 59-60, 62-63, 65-67.
52 Id. at 37-39 (G.R. No. 203372); id. at 67 (G.R. No. 206290).
53 The OSG alleged that the hologram numbers imprinted on the appointment papers of the other “midnight appointees” evince irregularity such that the hologram numbers of the appointment papers supposedly signed on the same date are not in series; that more than eight hundred (800) appointments were signed by GMA in March 2010 alone based on the Certification of the MRO (Respondents’ Memorandum before the CA, rollo, p. 176) which translates to signing more than 80 appointments a day – which explains why most of the appointments did not pass through the MRO and shows the blitzkrieg fashion in the issuance of the March appointments as the ban drew near (rollo, [G.R. No. 203372]; rollo [G.R. No. 206290], p. 295).
54Rollo (G.R. No. 206290), p. 292.
55 Comment in G.R. No. 203372, p. 13; Comment in G.R. No. 206290, p. 16; Comment in G.R. No. 212030, pp. 11-13.
56 Id. (G.R. No. 203372); id. at 20-22 (G.R. No. 206290); id. at 11 (G.R. No. 212030).
57 Id. (G.R. No. 203372); id. at 26 (G.R. No. 206290), rollo, p. 400.
58Debulgado v. Civil Service Commission, G.R. No. 111471, September 26, 1994, 237 SCRA 187, 199-200; and Mathay, Jr. v. Court of Appeals, 378 Phil. 473, 479 (1999).
59Sps. Jesus Dycoco v. Court of Appeals, G.R. No. 147257, July 31, 2013, 702 SCRA 566, 576.
60 A judgment or order is considered final if the order disposes of the action or proceeding completely, or terminates a particular stage of the same action; in such case, the remedy available to an aggrieved party is appeal (Spouses Bergonia and Castillo v. Court of Appeals, G.R. No. 189151, January 25, 2012, 604 SCRA 322, 326-327).
61Rollo (G.R. No. 203372), p. 80.
62 According to the petitioners, they received a copy of the CA Decision on September 17, 2013 (Rollo [G.R. No. 209138], pp. 3-4). Thus, they have until October 2, 2013 within which to file the petition for review on certiorari.
63Dycoco v. CA, G.R. No. 147257, July 31, 2013.
64 Id.
65Audi AG v. Mejia, G.R. No. 167533, July 27, 2007, 528 SCRA 380, 383-384.
66 CONSTITUTION, Article VIII, Section 5(5).
67Neypes v. Court of Appeals, G.R. No. 141524 September 14, 2005, 469 SCRA 634, 642.
68Heirs of Teofilo Gaudiano v. Benemerito, et al., G.R. No. 174247, February 21, 2007, 516 SCRA 418, 420.
69 Section 1, Article VII of the 1987 Constitution simply reads:ChanRoblesVirtualawlibrary
Section 1. The executive power shall be vested in the President of the Philippines.
70 Section 17, Article VII of the 1987 Constitution reads:ChanRoblesVirtualawlibrary
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
71 In Marcos v. Manglapus (258 Phil. 491, 501-502 [1989]), the Court pointed out the inaccuracy of this generalization of executive power: “It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers in here in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.”
72Ople v. Torres, 354 Phil. 948, 967 (1998).
73 CONSTITUTION, Article VII, Section 5.
74 See David Strauss, 15 Cardozo L. Rev. 113, October, 1993, Presidential Interpretation of the Constitution. For instance, in 1997, President Ramos issued an administrative order that provides, among others, for the withholding of an amount equivalent to 10% of the internal revenue allotment to local government units, pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation. Given the express provision of Section 6, Article X of the 1987 Constitution, mandating the automatic release of the internal revenue allotment to local government units, the President justified the issuance of the administrative order on the basis of the temporary nature of the withholding. While the Court did not agree with the President, this is a jurisprudential illustration of the President’s power of executive interpretation (Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 208).
75Marcos v. Manglapus, supra note 71. See also Section 1, Article VII of the Constitution which provides: “The executive power shall be vested in the President of the Philippines.”
76 See Geofrey Miller, The President’s Power of Interpretation: Implications of a Unified Theory of Constitutional Law.
77 For instance, in Integrated Bar of the Philippines v. Zamora (392 Phil. 627 [2000]), we deferred to the President’s “full discretionary power to determine the necessity of calling out the armed forces,” by reason of the petitioner’s failure to discharge the “heavy burden” of showing that the President’s decision (necessarily interpreting the phrase “whenever it becomes necessary” under Section 18 of Article VII) is “totally bereft of factual basis.” In this situation, the presidential power of executive interpretation is at its broadest.
78Galarosa v. Valencia, G.R. No. 109455, November 11, 1993, 227 SCRA 731, 746; and Bagatsing v. Committee on Privatization, PNCC, 316 Phil. 404, 429 (1995).
79 See Tañada v. Cuenco, 103 Phil. 1051, 1075-1076 (1957).
80 The courts may disregard contemporaneous construction where there is no ambiguity in the law, where the construction is clearly erroneous, where a strong reason exists to the contrary, and where the courts have previously given the statute a different interpretation. (Ruben E. Agpalo, Statutory Construction, 5th ed., 2003, p. 116.)
81 The latin phrase stare decisis et non quieta movere means “stand by the thing and do not disturb the calm.” See Justice Reynato Puno’s Dissenting Opinion in Lambino v. Commission on Elections (G.R. Nos. 174153 and 174299, October 25, 2006, 505 SCRA 160).
82 Article 8 of the New Civil Code reads:ChanRoblesVirtualawlibrary
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.
83 In the words of Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.” In Re: Resolution Granting Automatic Permanent Total Disability Benefits to Heirs and Judges Who Die in Actual Service, cited by Atty. Garafil, falls within this category. In this case, the Court issued an earlier resolution construing the provisions of Republic Act No. 910. However, despite the Court’s construction, the Department of Budget and Management (DBM) still continues to insist on its own interpretation of the law, prompting the Court to remind the DBM, viz.:chanRoblesvirtualLawlibraryWe take this occasion to remind DBM that it is an agency under the executive branch of government. Hence, it is mandated to ensure that all laws, not the least of which is this Court’s Resolution dated 30 September 2003 in A.M. 02-12-01-SC, are faithfully executed.84 CONSTITUTION, Article VIII, Section 1.
In his letter of 19 July 2004 to the Chief Justice Undersecretary Relampagos speaks of DBM’s “mandate to ensure that disbursements are made in accordance with law”. It must be emphasized, however, that such a mandate does not include reviewing an issuance of this Court and substituting the same with DBM’s own interpretation of the law. Anything of that sort is nothing less than a blatant usurpation of an exclusively judicial function and a clear disregard of the boundary lines delineated by the Constitution.chanroblesvirtuallawlibrary
85 See Atty. Sana v. Career Executive Service Board, G.R. No. 192926, November 15, 2011, 660 SCRA 130, 139.
86 Section 5, Article VIII, 1987 CONSTITUTION reads:ChanRoblesVirtualawlibrary
Section 5. The Supreme Court shall have the following powers:chanRoblesvirtualLawlibrary87 G.R. No. L-19313, January 19, 1962, 4 SCRA 6.x x x x
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:ChanRoblesVirtualawlibrary(a) All cases in which the constitutionality or validity of x x x presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
88 118 Phil. 1127 (1963).
89 9 SCRA 204 (1963). In Merrera, the Court observed that the following facts argue against the application of the Aytona ruling to the appointment involved: the appointment was extended on November 6, 1961 (or weeks before the elections); the necessity to fill the vacancy existed; the appointee was qualified to the position, as shown by the favorable recommendation of the official concerned and; he entered upon the exercise of his official functions days before the “scramble” in Malacanan on December 29, 1961.
90 121 Phil. 742 (1965). In Morales, the Court considered the appointment made on November 6, 1961 (or weeks before the elections) as sufficient to indicate “deliberate and careful action” even though the appointment was released only on December 27, 1961 and the appointee assumed office only on December 28, 1961.
91 109 Phil. 494 (1964), citing its March 30, 1962 resolution in Aytona v. Castillo.
92 119 Phil. 729 (1964).
93 In Quimsing v. Tajanglangit, the Court said:ChanRoblesVirtualawlibrary
In the various cases decided by this Court after the Aytona v. Castillo case, the matter of the validity of appointments made after December 13, 1961 by former Administrative Order No. 2 (which was never upheld by this Court) but, on the basis of the nature, character and merit of the individual appointments and the particular circumstances surrounding the same. In other words, this Court did not declare that all the ad-interim appointments made [were void] by the mere fact that the same were extended after [the date fixed by the presidential issuance] nor that they automatically come within the category of the "midnight" appointments, the validity of which were doubted and which gave rise to the ruling in the Aytona case[.]
94 In Tajanglangit the appointment was extended several days before the new President took his oath and assumed office.
95 The Election Code of 1971.
96 See Sections 75 and 76 of RA 6388. “except upon prior authority” of the Commission on Elections (COMELEC) or, in case of urgent need with prior notice to the COMELEC.
97 The 1978 Election Code. Except that: (i) the period covered by the prohibition on appointment or hiring of new employee was left to the determination of the COMELEC and (ii) the period of prohibition on the detail or transfer covers the election period (See Art. IX-C, Section 9 of the 1987 Constitution).
98 The present Omnibus Election Code. Section 261 (g) and (h) of BP 881 considers the following as election offense:chanRoblesvirtualLawlibrary99 But see special provision for appointments in the Judiciary, as recognized in De Castro v. Judicial and Bar Council, G.R. No. 191002, March 27, 2010, 615 SCRA 702.x x x x
(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:ChanRoblesVirtualawlibrary
(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, x x x any government official or employee, including those in government-owned or controlled corporations.x x x x
(h) Transfer of officers and employees in the civil service. - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.chanroblesvirtuallawlibrary
100 See Justice Brion’s Concurring and Dissenting Opinion in Arturo de Castro v. Judicial and Bar Council, G.R. No. 191002, April 20, 2010, 615 SCRA 788, 822.
101 If at all, the factual circumstances surrounding the appointment may become material should the President make a last minute en masse “appointment” - as the term is understood under Section 15, Article VII – a day or two before the effectivity of the ban in a manner that unmistakably shows an abuse of presidential prerogative comparable or even worse than Aytona.
102 If at all, these factual circumstances may become material once an appointment is found to be technically valid. See footnote (preceding immediately).
103 G.R. No. 181559, October 2, 2009, 602 SCRA 580, 591-593.
104 CSC Resolution No. 010988 dated June 4, 2001, pertinently reads:chanRoblesvirtualLawlibraryNOW THEREFORE, the Commission, pursuant to its constitutional mandate as the control personnel agency of the government, hereby issues and adopts the following guidelines:ChanRoblesVirtualawlibrary105 This case in turn cited pre-1987-Constitution cases: Quimsing v. Tajanglangit (1964); Davide v. Roces (1975); Aytona v. Castillo (1962); Rodriguez, Jr. v. Quirino (1963).x x x x
3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, except in cases of renewal and reinstatement, regardless of status, which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, including its Regional or Field Offices, of said appointments or the Report of Personnel Actions (ROPA) as the case may be, shall be disapproved unless the following requisites concur relative to their issuance:ChanRoblesVirtualawlibrary
a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments as shown by the PSB report or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety;
d) That the appointment is not one of those mass appointments issued after the elections.
4. The term "mass appointments" refers to those issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for their immediate issuance.chanroblesvirtuallawlibrary
106De Rama v. Court of Appeals, G.R. No. 131136, February 28, 2001, 353 SCRA 95, 102.
107Quirog v. Governor Aumentado, G.R. No. 163443, November 11, 2008, 570 SCRA 584, 595-596.
108 Under Article V, Section 9 (h) of Presidential Decree No. 807, the Civil Service Commission does not have the power to approve appointments made by the President.
There may be a slight difference when the appointment requires confirmation. Under the Constitution, in cases requiring the confirmation of the Commission on Appointments and while Congress is in session, the President merely nominates and it is only after the Commission on Appointments has given its consent that the President appoints. This situation however can rarely happen because the prohibition in Section 15, Article VII happens only once every six years.
109 According to Valencia v. Peralta, Jr. (supra note 40), a written memorial (the commission) to evidence one’s appointment is necessary to render title to public office indubitable.
110 In Borromeo v. Mariano (1921), the Court said that even if the law does not “prevent a judge of first instance of one district from being appointed to be judge of another district," the acceptance of the new appointment by the appointee is required to carry the process of appointment out. The same principle was applied in Lacson v. Romero, G.R. No. L-3081, October 14, 1949. In Javier v. Reyes (1989) and Garces v. Court of Appeals (1996), the Court said that “acceptance x x x is indispensable to complete an appointment.” In Garces, since the respondent did not accept his appointment to another station, then the petitioner cannot be validly appointed to the respondent’s station which is not legally vacant.
111 G.R. No. 39451, February 20, 1989, 170 SCRA 360.
112Bermudez v. Executive Secretary, G.R. No. 131429, August 4, 1999, 311 SCRA 735, 739, citing Aparri v. Court of Appeals, 212 Phil. 218, 222-223 (1984).
113Aparri v. Court of Appeals, supra note 112.
114 Bernas, the 1987 Constitution of the Republic of the Philippines, A Commentary, 2009 Ed., at p. 870.
115Concepcion v. Paredes, G.R. No. L-17539 December 23, 1921.
116 Section 16, CONSTITUTION.
117 G.R. No. 139821, January 30, 2002.
118Sevilla v. Court of Appeals, G.R. No. 88498 June 9, 1992, 210 SCRA 638, 642; and Binamira v. Garrucho, G.R. No. 92008 July 30, 1990, 188 SCRA 156, 158. See also Flores v. Drilon, G.R. No. 104732 June 22, 1993, 223 SCRA 570, 578.
119 Jurisprudence to the effect that oath of office is a qualifying requirement for a public office and that it is only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete (Lecaroz v. Sandiganbayan, 364 Phil. 896, 904 [1999]; Mendoza v. Laxina, Sr., 453 Phil. 1018, 1026-1027 [2003]; and Chavez v. Ronidel, G.R. No. 180941, June 11, 2009, 589 SCRA 104, 109) is immaterial in the interpretation of Section 15, Article VII because these cases concern the effects of taking or not taking an oath of office on the appointee. In Chavez, since the appointing power issued the appointment (February 23) before her successor took his oath (February 26) of office, then the appointment is valid even if the successor was “appointed” at an earlier date (February 19). In Lecaroz, the Court said that since the oath taken by the supposed successor in office was invalid (because the person who administered it has no power to do so), then the predecessor holdover officer continues to be the rightful occupant entitled to rights and privileges of the office. The necessity of taking an oath however (or of any of the acts of the appointee) is far removed from the purpose of the appointment ban.
120 Comment.
121 In Appari v. Court of Appeals (supra note 112), the Court said that when, at the instance of the President, the appointing power subsequently fixed the appointee’s term, the Board merely acted in accordance with law which empowered the Board to “fix the [appointee’s] term subject to the approval of the President.” In Bermudez v. Torres (1999), the Court’s definition of appointment was not that material since what is in issue is the lack of recommendation by the Justice Secretary to the President’s appointment as required by law. In Mitra v. Subido (G.R. No. L-21691, September 15, 1967, 215 SCRA 131, 141-142), the Court affirmed petitioner’s appointment after according presumption of regularity to the approval made by a subordinate of the Civil Service Commissioner. In so holding, the Court said: “Unless the appointment is an absolute nullity xxx the irregularity must be deemed cured by the probational and absolute appointment of the appointee and should be considered conclusive.” In Aquino v. Civil Service Commission (G.R. No. 92403 April 22, 1992, 208 SCRA 243, 248-249), the Court sustained the CSC’s action, revoking the designation of petitioner and in effect upholding that of respondent because respondent’s “permanent appointment” which was approved by the CSC conferred on respondent security of tenure. The Court laid down the rule that “the moment the discretionary power of appointment has been exercised and the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority [except “for cause”] [provided that] the first appointee should possess the minimum qualifications required by law.” (See also, Provincial Board of Cebu v. Hon. Presiding Judge of Cebu, 253 Phil. 3 [1989]; Atty. Corpuz v. Court of Appeals, 348 Phil. 804 [1998]; and Dimaandal v. Commission on Audit, 353 Phil. 528 [1998]).
122Re: Seniority Among the Four (4) Most Recent Appointments to the Position of Associate Justices of the Court of Appeals, supra note 40.
123 It is argued that since the final act in the appointing process is the transmittal of the appointment to the Supreme Court, then the second option should determine the issue of seniority. The Court rejected this argument.
124 An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and For Other Purposes [The Judiciary Reorganization Act of 1980], Batas Pambansa Blg. 129 (1980).
125 Id. at Section 3.
126 In fact, the wording of the applicable law in In Re Seniority (Section 3, Chapter I of Batas Pambansa Blg. 129, as amended) made it even further clear that the phrase “dates of their respective appointments” should mean exactly what it says by providing for a situation that “when the appointments of two or more of them shall bear the same date” then seniority shall be based “according to the order in which their appointments were issued by the President.”
127Civil Liberties Union v. Executive Secretary (G.R. No. 83896 February 22, 1991, 194 SCRA 320, 325) is instructive:chanRoblesvirtualLawlibraryA foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.chanroblesvirtuallawlibrary128 358 Phil. 901, 913-914 (1998).
129 Webster’s Dictionary defines partisanship as “strong or sometimes blind and unreasoning adherence to a single cause or group: bias, one-sidedness, prejudice.”
130 In In re Valenzuela, the Court ruled that the second type of prohibited appointment consist of the so-called "midnight" appointments,” citing Aytona. Aytona and most cases (involving so-called midnight appointments) involved appointments made by executives who lost their bid in re-election.
131 Section 4, Article VII reads:chanRoblesvirtualLawlibrarySection 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.chanroblesvirtuallawlibrary132 That (i) is directed only against an outgoing president; (ii) provides its own timeframe; and (iii) makes no distinction on the kind of ‘appointment’ involved.
133In Re: Valenzuela aptly stated:chanRoblesvirtualLawlibrarySection 15, Article VII has a broader scope than the Aytona ruling. It xxx contemplate[s] not only "midnight" appointments - those made obviously for partisan reasons as shown by their number and the time of their making - but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.134 The President is the country’s Chief Executive and administrative head of the Executive Department (See Ople v. Torres, stating: “Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations.”). He is also the chief architect of the nation’s foreign policy and as the country’s sole representative with foreign nations (Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 628, 632; and Bayan v. Zamora, 396 Phil. 631, 663 [2000]). He is also the Commander-in-Chief of the country’s armed forces. He is also the protector of the peace (See Marcos v. Manglapus, supra note 71, at 504-505.)
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.chanroblesvirtuallawlibrary
135 With or without reference to the appointee. For instance, while the Constitution allows the President to make ad interim appointments, the Constitution nevertheless limits its effectivity “only until disapproved by the Commission on Appointments or until the next adjournment of the Congress” without reference to the appointee. With reference to the appointee, the President is prohibited from appointing his “spouse and relatives by consanguinity or affinity within the fourth civil degree” “as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.
Section 15, Article VII itself is a limitation of the appointing power of the President that does not make any reference to the appointee.
136 By prescribing the minimum qualifications for office.
137Sarmiento v. Mison, 240 Phil. 514, 526 (1987).
138Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, 224 Phil. 178, 187 (1985); and Luego v. Civil Service Commission, 227 Phil. 305, 307 (1986).
139 See Espanol v. Civil Service Commission, G.R. No. 85479, March 3, 1992, 206 SCRA 716, 721, 723-724, citing Abila v. Civil Service Commission, et al., G.R. No. 92573, June 3, 1991, 198 SCRA 102, 106. From this power, too, flows the power to discipline or remove, as a rule (See Larin v. Executive Secretary, 345 Phil. 961 (1997).
140 The ponencia holds that the following elements should always concur in the making of a valid appointment: (1) authority to appoint and evidence of the exercise of the authority; (2) transmittal of the appointment and evidence of the transmittal; (3) a vacant position at the time of the appointment; and (4) acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications, p. __.
141 See Valencia v. Peralta, Jr., supra note 40, at 694-695.
142Bermudez v. Executive Secretary, 370 Phil. 769 (1999).
143 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, and so forth, 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 (Lapinid v. Civil Service Commission, et al., 274 Phil. 381, 386 [1991], citing Gaspar v. Court of Appeals, 268 Phil. 842 [1990]).
144Rollo (G.R. No. 203372), p. 31; rollo (G.R. No. 206290), pp. 59 and 62.
145 Book IV, Chapter 7, Sec. 38(1) Administrative Code of 1987 reads:chanRoblesvirtualLawlibrarySec. 39. Secretary's Authority. - (1) The Secretary shall have supervision and control over the bureaus, offices, and agencies under him, subject to the following guidelines: (a) Initiative and freedom of action on the part of subordinate units shall be encouraged and promoted, rather than curtailed, and reasonable opportunity to act shall be afforded those units before control is exercised[.]146 Comment in G.R. No. 203372; Comment in G.R. No. 206290, pp. 292-294.
147 MRO Service Guide, p. 5, rollo, p. 526 (G.R. No. 206290).
148 As early as Villena v. Secretary of Interior, the Court had held:chanRoblesvirtualLawlibraryFamiliarity with the essential background of the type of government established under our Constitution, in the light of certain well-known principles and practices that go with the system, should offer the necessary explanation. With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is, the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principles that “The executive power shall be vested in a President of the Philippines.” This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other.chanroblesvirtuallawlibrary149Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 154.
150Rufino v. Enriga, 528 Phil. 473 (2006). In National Electrification Administration v. Commission on Audit, 427 Phil. 464, 485 (2002), the Court said:chanRoblesvirtualLawlibraryExecutive officials who are subordinate to the President should not trifle with the President’s constitutional power of control over the executive branch. There is only one Chief Executive who directs and controls the entire executive branch all other executive officials must implement in good faith his directives and orders. This is necessary to provide order, efficiency and coherence in carrying out the plans, policies and programs of the executive branch.chanroblesvirtuallawlibrary151Bermudez v. Torres, G.R. No. 131429, August 4, 1999, 311 SCRA 733.
152Ponencia.
153 Id.
154 Id. at 16.
155 CA Decision in G.R. No. 203372, pp. 15-16; CA Decision in G.R. No. 206290, pp. 23-24.
156 The CA’s ruling implies that a timely issued appointment has an expiration date that coincides with the date of the appointment ban, such that, if the appointee does not act on his appointment before its expiration, there is no longer any appointment that he can accept later on. This implication obviously finds no support both in the language and intent of Section 15, Article VII.
157 However, while the appointee’s acts may be made even after the appointment ban, the constitution presupposes that the appointment made will take effect or the office involved will be vacant prior to the effectivity of the constitutional ban. This is clearly deduced from E.O. No. 2 itself. E.O. No. 2 Section 1b reads:chanRoblesvirtualLawlibrarySECTION 1. Midnight Appointments Defined. – The following appointments shall be considered as midnight appointments:ChanRoblesVirtualawlibrary158 This is where the advisability of coursing the appointment through the MRO comes in.x x x x
(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that would be vacant only after March 11, 2010.chanroblesvirtuallawlibrary
159 In this regard, we cannot totally discount Director Dimaandal’s testimony that the presidential appointments made in March 2010 alone reached more than 800 and that out of this number, only 133 were appointment papers were released through the MRO (Rollo, pp. 468-470, G.R. No. 206290) in explaining the absence of proof as to the date of actual issuance/release of the appointment papers of the petitioners.
160Rollo (G.R. No. 206290), p. 466 (testimony of Director Dimaandal).chanroblesvirtuallawlibrary