G.R. No.

L-19313 January 19, 1962 Appeals (9 and 10) between an assistant of the Solicitor-General's Office, and the
DOMINADOR R. AYTONA, petitioner, chairman of the board of tax appeals of Pasay City, who in turn are followed by
vs. judges of first instance, and inserted between the latter is the name of another
ANDRES V. CASTILLO, ET AL., respondents. associate justice of the Court of Appeals.
R E S O L U T I O N. There were other appointments thus submitted by President Garcia on that date,
BENGZON, C.J.: December 29, 1961. All in all, about three hundred fifty (350) "midnight" or "last
Without prejudice to the subsequent promulgation of more extended opinion, the minute" appointments.
Court adopted today, the following resolutions: . In revoking the appointments, President Macapagal is said to have acted for these
On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. and other reasons: (1) the outgoing President should have refrained from filling
Aytona as ad interim Governor of the Central Bank. On the same day, the latter vacancies to give the new President opportunity to consider names in the light of
took the corresponding oath. his new policies, which were approved by the electorate in the last elections; (2)
On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed these scandalously hurried appointments in mass do not fall within the intent and
office; and on December 31, 1961, he issued Administrative Order No. 2 recalling, spirit of the constitutional provision authorizing the issuance of ad interim
withdrawing, and cancelling all ad interim appointment made by President Garcia appointments; (3) the appointments were irregular, immoral and unjust, because
after December 13, 1961, (date when he, Macapagal, had been proclaimed they were issued only upon the condition that the appointee would immediately
elected by the Congress). On January 1, 1962, President Macapagal appointed qualify obviously to prevent a recall or revocation by the incoming President, with
Andres V. Castillo as ad interim Governor of the Central Bank, and the latter the result that those deserving of promotion or appointment who preferred to be
qualified immediately. named by the new President declined and were by-passed; and (4) the abnormal
On January 2, 1962, both appointed exercised the powers of their office, although conditions surrounding the appointment and qualifications evinced a desire on the
Castillo informed Aytona of his title thereto; and some unpleasantness developed part of the outgoing President merely subvert the policies of the incoming
in the premises of the Central Bank. However, the next day and thereafter, Aytona administration.
was definitely prevented from holding office in the Central Bank. It is admitted that many of the persons mentioned in the communication to the
So, he instituted this proceeding which is practically, a quo warranto, challenging Commission on Appointments dated December 29, 1961, did not qualify. There is
Castillo's right to exercise the powers of Governor of the Central Bank. Aytona evidence that in the night of December 29, there was a scramble in Malacañan of
claims he was validly appointed, had qualified for the post, and therefore, the candidates for positions trying to get their written appointments or having such
subsequent appointment and qualification of Castillo was void, because the appointments changed to more convenient places, after some last minute
position was then occupied by him. Castillo replies that the appointment of Aytona bargaining. There was unusual hurry in the issuance of the appointments — which
had been revoked by Administrative Order No. 2 of Macapagal; and so, the real were not coursed through the Department Heads — and in the confusion, a
issue is whether the new President had power to issue the order of cancellation of woman appointed judge was designated "Mr." and a man was designated
the ad interim appointments made by the past President, even after the appointees "Madam." One appointee who got his appointment and was required to qualify,
had already qualified.1äwphï1.ñët resorted to the rush of asking permission to swear before a relative official, and
The record shows that President Garcia sent to the Commission on Appointments then never qualified.
— which was not then in session — a communication dated December 29, 1961, We are informed, it is Malacañan's practice — which we find to be logical — to
submitting "for confirmation" ad interim appointments of assistant director of lands, submit ad interim appointments only when the Commission on Appointments is in
councilors, mayors, members of the provincial boards, fiscals, justices of the session. One good reason for the practice is that only those who have accepted
peace, officers of the army, etc.; and the name of Dominador R. Aytona as the appointment and qualified are submitted for confirmation. Nevertheless, this
Governor of the Central Bank occupies number 45, between a justice of the peace time, Malacañan submitted its appointments on the same day they were issued;
and a colonel of the Armed Forces. and the Commission was not then in session; obviously because it foresaw the
Another communication of President Garcia bearing the same date, submitted a possibility that the incoming President would refuse to submit later the appointees
list of ad interim appointments of Foreign Affairs officers, judges, fiscals, chiefs of of his predecessor. As a result, as already adverted to, some persons whose
police, justices of the peace, mayors, councilors, etc. number 63 of which was that names were submitted for confirmation had not qualified nor accepted their
of Dominador R. Aytona for Governor of the Philippines in the Boards of appointments.
International Monetary Fund, International Bank for Reconstruction and Because of the haste and irregularities, some judges of first instance qualified for
Development, etc. districts wherein no vacancies existed, because the incumbents had not qualified
A third communication likewise dated December 29, 1961, addressed to the for other districts to which they had been supposedly transferred or promoted.
Commission on Appointments submitted for confirmation 124 names of persons Referring specifically to judges who had not qualified, the course of conduct
appointed as judges of first instance, members of provincial boards, and boards of adopted by Former Chief Justice Moran is cited. Being ambassador in Spain and
government corporations, fiscals, justice of the peace, even one associate justice desiring to return to this Court even as associate justice, Moran was tendered an
of this Court occupying position No. 8 and two associate justices of the Court of ad interim appointment thereto by President Quirino, after the latter had lost the
election to President Magsaysay, and before leaving the Presidency. Said considering the rush conditional appointments, hurried maneuvers and other
Ambassador declined to qualify being of the opinion that the matter should be left happenings detracting from that degree of good faith, morality and propriety which
to the incoming newly-elected President. form the basic foundation of claims to equitable relief. The appointees, it might be
Of course, nobody will assert that President Garcia ceased to be such earlier than argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline,
at noon of December 30, 1961. But it is common sense to believe that after the whatever the resultant consequences to the dignity and efficiency of the public
proclamation of the election of President Macapagal, his was no more than a service. Needless to say, there are instances wherein not only strict legality, but
"care-taker" administration. He was duty bound to prepare for the orderly transfer also fairness, justice and righteousness should be taken into account.
of authority the incoming President, and he should not do acts which he ought to WHEREFORE, the Court exercising its judgment and discretion in the matter,
know, would embarrass or obstruct the policies of his successor. The time for hereby dismiss the action, without costs.
debate had passed; the electorate had spoken. It was not for him to use powers as Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.
incumbent President to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan purposes. The filling up Separate Opinions
vacancies in important positions, if few, and so spaced to afford some assurance PADILLA, J., concurring:
of deliberate action and careful consideration of the need for the appointment and Once more this Court has to pass upon and determine a controversy that calls for
the appointee's qualifications may undoubtedly be permitted. But the issuance of an interpretation of the provisions of the Constitution. The facts that gave rise to
350 appointments in one night and planned induction of almost all of them a few the petition need not be restated as they are set forth in opinion rendered for the
hours before the inauguration of the new President may, with some reason, be Court. The question is whether the appointment of a person to a public office by a
regarded by the latter as an abuse Presidential prerogatives, the steps taken being President whose term of office was about to expire or cease is lawful or does not
apparently a mere partisan effort to fill all vacant positions1 irrespective of fitness contravene the Constitution; or, if lawful after the appointee has taken his oath,
and other conditions, and thereby deprive the new administration of an opportunity until when would such appointment be valid and effective. The constitutional point
to make the corresponding appointments. involved seems to have been overlooked the framers of the Constitution. It would
Normally, when the President makes appointments the consent of the Commission seem that the framers, well-meaning persons that they were, never foresaw an
on Appointments, he has benefit of their advice. When he makes ad interim eventuality such as the one confronting the Republic. The framers never thought
appointments, he exercises a special prerogative and is bound to be prudent to and anticipated that citizen elevated by the people to such an exalted office the
insure approval of his selection either previous consultation with the members of President of the Republic, would perform an act which though not expressly
the Commission or by thereafter explaining to them the reason such selection. prohibited by the Constitution and the law, ought not to be done, since a sense of
Where, however, as in this case, the Commission on Appointments that will propriety would be enough to stop him from performing it.
consider the appointees is different from that existing at the time of the The petitioner invokes section 10, paragraph 4, article VII, of the Constitution
appointment2 and where the names are to be submitted by successor, who may which provides that —
not wholly approve of the selections, the President should be doubly careful in The President shall have the power to make appointments during the recess of the
extending such appointments. Now, it is hard to believe that in signing 350 Congress, but such appointments shall be effective only until disapproval by the
appointments in one night, President Garcia exercised such "double care" which Commission on Appointments or until the next adjournment of the Congress.
was required and expected of him; and therefore, there seems to be force to the Under these constitutional provisions there seems to be no doubt that the
contention that these appointments fall beyond the intent and spirit of the President may make the appointment, and if approved by the Commission on
constitutional provision granting to the Executive authority to issue ad interim Appointments, it would unquestionably be lawful, valid and effective, but if
appointments. disapproved or not acted upon by the Commission on Appointments then the
Under the circumstances above described, what with the separation of powers, appointment becomes ineffectual and the appointee ceases and can no longer
this Court resolves that it must decline to disregard the Presidential Administrative perform the duties of the office to which he had been appointed.
Order No. 2, cancelling such "midnight" or "last-minute" appointments. It is urged that the petitioner's appointment having been made by the President
Of course, the Court is aware of many precedents to the effect that once an during the recess of the Congress and he having taken his oath, the appointment
appointment has been issued, it cannot be reconsidered, specially where the is lawful, valid and effective until disapproval by the Commission on Appointments
appointee has qualified. But none of them refer to mass ad interim appointments or until the next adjournment of the Congress should the Commission on
(three-hundred and fifty), issued in the last hours of an outgoing Chief Executive, in Appointments fail to act on it.
a setting similar to that outlined herein. On the other hand, the authorities admit of Ad interim appointments that the President may make during the recess of the
exceptional circumstances justifying revocation3 and if any circumstances justify Congress are those made during a period of time from the adjournment of the
revocation, those described herein should fit the exception. Congress to the opening session, regular or special, of the same Congress. In
Incidentally, it should be stated that the underlying reason for denying the power to other words, if the President had convened in a special session the fourth
revoke after the appointee has qualified is the latter's equitable rights. Yet it is Congress whose term was to expire on the 30th of December 1961 and during
doubtful if such equity might be successfully set up in the present situation, such session the ad interim appointments had been confirmed by the Commission
on Appointments there would be little doubt that the appointments would be lawful under Section 10, Paragraph 4, Article VII of the Constitution which provides: "The
and valid. President shall have the power to make appointments during the recess of the
The government established by the Constitution is one of checks and balances to Congress, but such appointments shall be effective only until disapproval by the
preclude and prevent arrogation of powers by officers elected or appointed under Commission on Appointments or until the next adjournment of the Congress." It is
it. clear that these appointments can only be made during the recess of Congress
Under the provisions of the Constitution "The term of office of Senators shall be six because they are ad interim appointments.
years and shall begin on the thirtieth day of December next following their The term "recess" has a definite legal meaning. It means the interval between a
election."1 And "The term of office of the Members of the House of session of Congress that has adjourned and another of the same Congress. It
Representatives shall be four years and shall begin on the thirtieth day of does not refer to the interval between the session of one Congress and that of
December next following their election."2 Under section 10, paragraph 4, article another. In that case the interval is not referred to as a "recess" but an
VII, of the Constitution, above quoted, the President may make appointments adjournment sine die. Thus, in the case of Tipton v. Parker, 71 Ark. 194, the court
during the recess of the Congress, "but such appointments shall be effective only said: "The 'recess' here referred to by Judge Cooley means the intermission
until disapproval by the Commission on Appointments or until the next adjournment between sittings of the same body at its regular or adjourned session, and not to
of the Congress." . the interval between the final adjournment of one body and the convening of
The term "recess", in its broadest sense, means and refers to the intervening another at the next regular session. When applied to a legislative body, it means a
period between adjournment of a regular session of one hundred days exclusive of temporary dismissal, and not an adjournment sine die." Since the appointments in
Sundays, or of a Special session which cannot continue longer than thirty days, question were made after the Fourth Congress has adjourned sine die and ceased
and the convening thereof in regular session once every year on the fourth to function on December 30, 1961, they cannot partake of the nature of ad interim
Monday of January or in special session to consider general legislation or only appointments within the meaning of the Constitution.
such subjects as he (the President) may designate.3 And such intervening period 2. The Commission on Appointments under our constitutional set-up is not
refers to the same Congress that had adjourned and was to be convened. Such continuing body but one that co-exists with the Congress that has created it. This
intervening period cannot refer to two different Congresses, one that has is so because said Commission is a creation of the Senate and of the House of
adjourned and one newly chosen or elected to meet in regular session as provided Representatives. While the Senate is a continuing body, the House ceases at the
for by the Constitution, or in special session by the call of the President. end of its fourth year. It cannot therefore be continuing it being a creation of a body
The term of the President ... shall end at noon the thirtieth day of December half of which is alive and the other half has ceased to exist. This theory can also be
following the expiration four years after (his) election and the term of (his) gleaned from the proceedings of the constitutional convention.
successor shall begin from such time.4 Thus, the preliminary draft of the Philippine Constitution provides for a permanent
If the ad interim appointments made by the President during the recess of the Commission and for the holding of sessions of the Commission even during the
Congress are effective only until disapproval by the Commission on Appointments recess of Congress. After mature deliberation the proposal was defeated and a
or until the next adjournment of the Congress — a limitation on the power of the substitute was adopted which is now embodied in Article VI, Section 12, of our
President — there is a cogent and strong reason for holding to be the intent of the Constitution. As a matter of fact, as finally adopted, the Commission on
framers of the Constitution that such appointments made by him ceased to be valid Appointments has to be organized upon the convening of a new Congress after
and effective after the term of the Congress existing at the time of the making of the election of the Speaker of the House of Representatives or of the President of
such appointments had ended or expired. The end or expiration of the of the the Senate, as the case may be, as provided for in Section 13, Article VI of the
Congress existing at the time of the making of the ad interim appointments by the Constitution (Article VII, Preliminary Draft of the Constitution, Vol. 2, Aruego: The
President is a stronger cause or reason for the lapse or ineffectuality of such Framing of the Constitution, pp. 982, 987).
appointments than "the next adjournment of the Congress." Since that Congress An ad interim appointment, to be complete, needs to be submitted to the
no longer exists and hence can no longer convene and then "adjourn." The Commission on Appointments one the same is constituted. This is reflected in the
effectivity and validity of the appointment of the petitioner as Governor of the Constitution when it provides that "such appointments shall be effective only until
Central Bank ceased, lapsed and expired on thirtieth of December 1961. He is no disapproval by the Commission on Appointments or until the next adjournment of
longer entitled hold the office to which he had been appointed. My vote, therefore, the Congress" (Section 10, Paragraph 4, Article VII). This mean that it must be
is for the denial of the petition. submitted to the Commission on Appointments of the Congress that has created it.
Dizon, J., concurs. It cannot be submitted to the Commission on Appointments of a different
I concur with the foregoing concurring opinion of Justice Padilla, the same being Congress. Since the appointments in question were submitted to the Commission
based on an additional ground justifying denial of the petition under consideration. on Appointments which ceased to function on December 30, 1961, they lapsed
BAUTISTA ANGELO, J., concurring: . upon the cessation of said Commission. Consequently, they can be recalled by the
In addition to the reasons stated in the resolution adopted by this Court on January new Chief Executive.
19, 1962, I wish to express the following views: . 3. An ad interim appointment is not complete until the appointee takes the oath of
1. The "midnight appointments" made by President Garcia were extended by him office and actually takes possession of the position or enters upon the discharge of
its duties. The mere taking of the oath of office without actual assumption of office possibility of recall when the last of the prescribed steps is taken, and that, where
is not sufficient to constitute the appointee the actual occupant thereof who may no method of appointment is provided, an appointment does not become effective
not be removed therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d. and beyond recall until the appointing officer by some act or word evinces a final
584). The case of Summers v. Ozaeta, 81 Phil., 754, cannot be cited as a intent to vest the appointee with title to the office." (67 C.J.S., pp. 161-162) .
precedent as to when an ad interim appointment becomes permanent and binding. After the act of appointment is complete, the appointing authority may not revoke
That case involves a cadastral judge who was given an ad interim appointment as its former appointment and make another. And appointment to office is complete
judge at large. After assuming the office and discharging his duties, his when the last act required of the person or body vested with the appointing power
appointment was not confirmed. He claimed that he could still revert to his former has been performed. (56 C., p. 954) .
position as cadastral judge. True, this Court made a statement therein that an ad In all jurisdictions where appointment to office is regarded as an executive
interim appointment becomes permanent after taking the oath of office, but such function, as here, an appointment to office once made is incapable of revocation or
statement is merely an obiter dictum because the case could have been decided cancellation by the appointing executive in the absence of a statutory or
on the doctrine that, having accepted an incompatible office, petitioner was constitutional power of removal. Barrett v. Duff 114, Kan. 220; 217 P. 918; People
deemed to have abandoned the position of cadastral judge. v. Mizner, 7 Cal. 519, State v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas.
In relying on certain cases for the proposition that once an appointee has taken the 1006; Draper v. State, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D, page 305,
oath of office his appointment becomes irrevocable petitioner fails to consider that Annotation." (McChesney v. Sampson, 23 S.W. 2d., 584) .
in said cases there had either been an actual discharge of duty and actual physical May an appointment be revoked by reason of error or fraud? This question was
possession or assumption of office following the oath-taking as to constitute the taken up in Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Scofield vs. Starr (63
appointee the occupant of the position from which he cannot be removed without A 512). The first involved a City Charter providing that its common council shall, in
cause. Even the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69, joint convention, appoint a prosecuting attorney. In such convention, Coogan
cannot be invoked as a precedent, for there the appointees were merely obtained a majority of the votes cast and of the convention. Upon announcement
nominated and their nominations confirmed by the Commission on Appointments of this result, a member of the convention offered a resolution declaring Coogan
even if they have later taken their oath of office. Certainly, they can no longer be elected, but the resolution was defeated. Then, two resolutions were offered and
deprived of their appointments for then the executive would be acting in disregard approved: one declaring that the ballots taken were null and of no effect by reason
of the confirming body which is a coordinate and independent body not subject to of errors in the same and another declaring Barbour elected prosecuting attorney.
his control. The issue was who had been appointed thereto. The court held that it was
Since the appointments in question were made not in the light of the views herein Coogan, he having obtained a clear majority and there having been no error or
expressed, I am of the opinion that they did not ripen into valid and permanent fraud in the voting, although it did not deny the power of the convention to correct
appointments and as such were properly recalled by the new Chief Executive. errors and to nullify the effects of fraud in the voting by invalidating the same and
CONCEPCION, J., concurring in part and dissenting in part: . calling another election, had the proceedings been tainted with such error or fraud.
It is well settled that the granting of writs of prohibition and mandamus is ordinarily The second case referred to a similar provision in a city charter, to the effect that
within the sound discretion of the courts, to be exercised on equitable principles, appointments by the common council shall be by ballot and that the person
and that said writs should be issued when the right to the relief is clear (55 C.J.S. receiving a plurality of ballots shall be elected. The first balloting taken for the
25, 29, 73 C.J.S. 18). Insofar as the majority resolution relied upon discretion and election of the city surveyor of Brigeport resulted in 25 ballots being cast. It was
the equities of the case in denying said writs, I concur, therefore, in the announced that there was one ballot more than members voting, and that there
aforementioned resolution. were 13 ballots for Scofield, 11 for Starr and one blank ballot. Scofield maintained
However, I cannot see my way clear to subscribing the observations therein made that this result amounted to his appointment precluding the council from taking a
representing the motives allegedly underlying petitioner's appointment and that of new ballot but such pretense was rejected. Inasmuch as the number of ballots cast
many others who are not parties in this case, and justifying the revocation of such exceeded the number of persons voting, the council was justified in believing that
appointments. My reasons, among others, are: . the proceeding was not free from suspicion of fraud or mistake in the voting and,
1. Save where the incumbent has a temporary appointment or is removable at the accordingly in taking another vote.
will of the appointing power, an appointment once complete, by the performance of In both cases, the fraud or mistake alluded to referred to the manner of voting or of
all acts required by law of the appointing power, is irrevocable. counting the ballots cast, not to the intent of the voters in choosing a particular
An appointment to office may be revoked at any time before the appointment appointee.
becomes final and complete, but thereafter unless the appointee is removable at 2. An ad interim appointment, made during a recess of Congress, is complete and
the will of appointing power. For the purpose of this rule, an appointment to office irrevocable upon the performance of the last act required by law from the
is complete when the last act required of the person or body vested with the appointing power, even without previous notice to the appointee, or acceptance by
appointing power has been performed. Where by constitutional, statutory, or other him, or without subsequent action of the legislative organ that may terminate its
legal provision it is required that certain steps be taken to make effective effectivity.
appointment, it has been held that the appointment becomes complete beyond the In the case of appointment made by a single executive such as a governor, mayor,
etc., it is undisputed that the appointment once made is irrevocable. xxx xxx xxx
xxx xxx xxx In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding that an appointment
Where an appointment subject to confirmation by the senate is made by a made by a governor to fill an office which had expired during a recess of the
governor during a recess of the senate, ... the question arises as to whether such legislature was not merely an appointment to fill a vacancy which would expire at
an appointment may be reconsidered and withdrawn by the governor before it is the end of the next session of the legislature, but was an appointment for a full
acted upon by the Senate. term, and that the act of the governor during a subsequent session of the
xxx xxx xxx legislature, in appointing another to the office and asking his confirmation by the
In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. 918, where appointments made by legislature, was unauthorized and void, it was said that, the power of the executive
the governor during a recess of the legislature, which appointments could not be having been once exercised, he had no further control over the office until the
confirmed by the senate as required by law until the next session of that body, appointee has been rejected by the senate." (89 ALR, pp. 138, 139, 140.) .
were revoked by the governor's successor, and other persons were appointed to 3. The irrevocability of the ad interim appointment adverted to above becomes
the offices, such action by him being taken after the senate had convened and had more apparent when we consider that the House, Commission on Appointments or
taken under advisement the confirmation of the persons first appointed to the other agency of Congress charged with the function of terminating the effectivity of
offices, but before the senate had taken any definite action with regard to such such appointment, may act thereon, by approving or disapproving the same, even
confirmation, and the senate, confirmed the first appointee, but, despite this act of though the Executive had not submitted or forwarded it to said House, Commission
the senate, commissions were issued by the governor to the second appointee, it or agency of Congress, and even though either the outgoing or the incoming
was held, in reliance upon the terms of the statutes which provided that the Executive shall have submitted for confirmation the name of a subsequent
governor should 'appoint' persons to such offices with the advice and consent of appointee in lieu of the first one..
the senate, as distinguished from the provision of the Constitution of the United This was the situation met in People ex rel, Emerson vs. Shawver (30 Wyo 366,
States governing appointments by the President, which provides that the President 222 Pac. 11). The facts therein were: On July 1, 1919, Governor Carey of
shall 'nominate' and, by and with the advice and consent of the senate, shall Wyoming appointed Emerson as state engineer, to fill the vacancy caused by the
'appoint' persons to office, that the act of the governor in making the first resignation of its incumbent. Upon the expiration of the latter's term, Governor
appointments was final and exhausted the power of the governor's office in that Carey reappointed Emerson for a full term of six (6) years, from and after April 1,
regard unless and until the appointments were rejected by the senate, and that, 1921. This last appointment was confirmed by the state legislature at its next
therefore, the persons appointed by the first governor were entitled to the office. In session in 1923. Prior thereto, however, Governor Carey's term had expired and
the words of the court, 'The power of the governor having been exercised, he had his successor had appointed Shawver as state engineer. Thereupon Shawver
no further power of the governor having been exercised, he had no further control ousted Emerson from such office. It was held that Emerson had a better right
over the respective offices unless and until the appointees had been rejected by thereto; that his appointment in 1921 was a completed appointment, requiring no
the senate.' In reaching this result, the court emphasized the difference between a action by the Senate to entitle him to hold said office; that a recess appointment
nomination and an appointment, holding that, where the statute relating to once made by "the executive is not subject to reconsideration or recall, "even
appointments by the governor with the consent of the senate provides that the though not as yet confirmed by the Senate, inasmuch as," the appointment alone
governor shall appoint persons to the office with the consent of the senate, rather confers upon the appointee for the time being the right to take and hold the office,
than merely nominate persons for consideration by the senate, the appointment is and constitutes the last act respecting the matter to be performed by the executive
final and conclusive without confirmation. ... . power"; and that, although the term of Governor Carey had expired and neither he
Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23 S.W. (2d.) 584, the act nor his successor had forwarded Emerson's appointment to the Senate for
of governor in making a recess appointment was held to be not merely a confirmation or requested the Senate to act upon said appointment, the same had
nomination subject to revocation by the governor at any time prior to action been validly confirmed by said body, for .
thereon by the senate, but a final and irrevocable appointment subject only to The provision as to the office here in question found in the Constitution does not
rejection by the senate. In support of this result, it was said: 'It is urged that say that the appointment made by the Governor shall be confirmed by the Senate
appointment to the office consists of two separate acts, one by the governor and when requested by the former, or upon a communication by him submitting the
one by the senate, and until both have acted there is no appointment such as to matter to the Senate. And we perceive no substantial reason for adding by
bring the incumbent within the protection of the law. Even so, the two powers do construction any such restriction upon the Senate's right to act. (People v.
not act concurrently, but consecutively, and action once taken and completed by Shawver, 222 P. 11; see, also, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382;
the executive is not subject to reconsideration or recall. ... The fact that the title to State v. Williams, 20 S.C. 13; Richardson v. Henderson, 4 Wyo. 535, 35 Pac. 517,
the office, and the tenure of the officer, are subject to the action of the senate, does and other cases cited in the Shawver case.) .
not render incomplete the act of the chief executive in making the appointment. 4. The foregoing goes to show, also, that the question whether the Commission on
The appointment alone confers upon the appointee for the time being the right to Appointments is or is not a continuing body can not affect the determination of the
take and hold the office, and constitutes the last act respecting the matter to be case. Besides, the constitutional provision making an ad interim appointment, if not
performed by the executive power.' . disapproved by the Commission on Appointments, effective only until the next
adjournment of Congress, clearly indicates that such Commission must have an session of the General Assembly could not exceed 60 days, unless by a vote of
opportunity to approve or disapprove the appointment and that its inaction, despite 2/3 of the members of each of the two Houses of the legislature. Inasmuch as the
such opportunity, at the session of Congress next following the making of the Senate could not, without the concurrence of the House, directly extend the period
appointment — during which it could have met, and, probably, did meet — must be of its regular session, neither could it, without such concurrence, indirectly extend
understood as an expression of unwillingness to stamp its approval upon the act of said period, by granting its aforementioned committee the authority to function
the executive. No such opportunity exists when the outgoing Congress has not beyond said period. As stated by the Court "the committee, being the mere agency
held any session, regular or special after the making of the appointment and of the body which appointed it, dies when the body itself dies, unless it is continued
before the expiration of the term of said Congress, and the new Congress has not, by law", which the Senate may not enact, without the concurrence of the House..
as yet, organized itself or even met. The decision in said case did not seek to define the meaning of the term "recess"
5. The American rule concerning irrevocability of appointments is bolstered up in as used in any constitution or statute. It did not even refer to the authority to make
the Philippines by Section 4 of Article XII of the Constitution, which provides that — appointments during "recess". It has absolutely no bearing, therefore, on the issue
"no officer of employee in the Civil Service shall be removed except for cause as before us.
provided by law." (Article VII, Section 4.) . Upon the other hand, Dr. Jose M. Aruego, a prominent member of the
In fact, in his concurring opinion in Eraña vs. Vergel de Dios (85 Phil., 17), our constitutional convention, says, in his work on "The Framing of the Philippine
distinguished Chief Justice pointed out that the revocation of an appointment, if Constitution" (Vol I, pp. 434-435), that the draft of the provision on ad interim
feasible, "should be communicated to the appointee before the moment he appointments by the President, as submitted by the corresponding committee,
qualified," and that "any revocation thereafter, is tantamount to removal and must followed the principles of the Jones Law and that the recommendation of the
be judged according to the rules applicable to the removal" (emphasis ours). In the committee was readily approved on the floor of the convention, although the
present case, the revocation of petitioner's appointment was not communicated to committee on style gave said provision its present phraseology. Pursuant to the
him before he qualified by taking his oath of office. It is not even claimed that any Jones Law, "appointments made while the Senate is not in session shall be
of the statutory causes for removal of petitioner herein exists, or that the procedure effective either until disapproval or until the next adjournment of the Senate".
prescribed for such removal has been complied with. Hence, the term "recess" appearing in Section 10(4) of Article VII of our
6. Once an appointee has qualified, he acquires a legal, not merely equitable right, Constitution should be construed to mean "while Congress is not in session" and
which is protected not only by statute, but, also by the Constitution, for it cannot be this is confirmed by the practice consistently observed in the Philippines for time
taken away from him, either by revocation of the appointment or by removal, immemorial, as well as the ad interim appointment extended by President
except for cause, and with previous notice and hearing, consistently with said Macapagal to respondent Castillo.
Section 4 of Article XII of our fundamental law, and with the constitutional 8. The case of McChesney vs. Sampson (23 S. W. 2d. 584) has, also, been
requirement of due process (Segovia vs. Noel, 47 Phil., 547; Sec. 67 C.J.S. 117, invoked in support of the proposition that "an ad interim appointment is not
42 Am. Jur. 887). (See also, People ex rel Ryan v. Green, 58 N. v. 295; People vs. complete until the appointee takes the oath of office and actually takes possession
Gardner, 59 Barb 198; II Lewis Sutherland Statutory Construction, pp. 1161 and of the position or enters upon the discharge of its duties" and that, before such
1162; Mechem on Public Officers, Sec. 389; 22 R. C. L. 377- 378; 25 Am. Dec. actual taking of possession, though after the oath taking, the appointee may be
690-691, 703). removed without cause.
7. The case of Tipton vs. Parker (74 S. W., 298) has been cited in support of the We have not found in said case anything justifying such claim. The issue in said
theory that Congress of the Philippines was not in "recess" on December 29, 1961, case was whether a state governor could recall an unconfirmed appointment of
and that, accordingly, ad interim appointments could not validly be made in such McChesney to the state textbook commission when there had been no session of
date. The question involved in said case was whether a committee of the Senate the Senate subsequent to the appointment, and such issue was decided in the
of Arkansas could be authorized by the same to function after the adjournment negative.
sine die of the regular session of the state General Assembly. The State Supreme Although, in addition to accepting the appointment, McChesney had qualified and
Court considered as decisive authority the view expressed by Judge Cooley, to the exercised the function of the office, the decision of the Court clearly indicates that it
effect that a legislative committee "has no authority to sit during a recess of a was not necessary for him either to discharge the duties of the office or even to
House which appointed him, without its permission to that effect". The issue thus take the oath of office, in order to render his appointment irrevocable. The Court
hinged on the meaning of the term "recess" as used by Judge Cooley. Resolving explicitly declared that the appointment, once "completed by the executive is not
this question, said court held that the recess referred to by Judge Cooley was "only subject to reconsideration or recall;" that the appointment "is complete when the
the intermission between the sittings of the same body at its regular or adjourned appointing authority has performed the acts incumbent upon him to accomplish the
session and not to the interval between the final adjournment of one body and the purpose;" and that in the case of recess appointments, like that of McChesney,"
convening of another at the next regular session".. the appointment alone confers upon the appointee for the time being the right to
In this connection, it should be noted that, as an agency of the Senate, the take and hold the office and constitutes the last act respecting the matter to be
committee involved in said case could not operate for its principal beyond the performed by the executive power" completing the appointment and rendering the
latter's term. Moreover, under the Constitution of Arkansas, the regular biennial same irrevocable.
In short, the McChesney case is authority for the petitioner herein. of remedies for all political or social evils," but, also, quoted with approval the
9. Most, if not all appointments made by the President have two (2) aspects, statement, made in Alejandrino vs. Quezon (46 Phil., 81), to the effect that "the
namely, the legal and the political. The first refers to his authority to make the judicial department has no power to revise even the most arbitrary and unfair
appointment. The second deals with the wisdom in the exercise of such authority, action of the legislative department, or of either House thereof, taken in pursuance
as well as with its propriety. Whether given vacancy or number of vacancies should of the power committed exclusively to that department by the Constitution."
be filled, or who among several qualified persons shall be chosen, or whether a (Emphasis ours.) .
given appointment or number of appointment will favor the political party to whom 11. In the present case, we have completely reversed our stand on the principle of
the power of appointment belongs and will injure the interest of a rival political separation of powers. We have inquired into the motives of the Executive
party and to what extent, are, to my mind, essentially and typically political matters. department in making the appointments in question, although it is well settled,
Hence, I believe that the question whether certain appointments should be under the aforementioned principle, that: .
sanctioned or turned down by reason of the improper, immoral or malevolent Generally courts cannot inquire into the motive, policy, wisdom, or expediency of
motives with which said matters were allegedly handled is, likewise, clearly legislation.
political, and as such, its determination belongs, not to the courts of justice (Vera The justice, wisdom, policy, necessity, or expediency, of a law which is within its
vs. Avelino, 77 Phil., 192, 205; 16 C.J.S 689-690; Willoughby on the Constitution, powers are for the legislature, and are not open to inquiry by the courts, except as
Vol. III 1326-1327), but to the political organ established precisely to check an aid to proper interpretation." (16 C.J.S. 471-478) .
possible abuses in the exercise of the appointing power — the Commission on If this is true as regards the legislative branch of the government, I can see no
Appointments. valid reason, and none has been pointed out, why the same norm should not
Indeed, I can hardly conceive of any question more patently and characteristically govern our relations, with the executive department. However, we have not merely
political than this one, or more appropriate for determination of said body. Neither disregarded such norm. We are, also, in effect, restraining the Commission on
the possible or probable control thereof by members of the Nacionalista Party nor Appointments — an organ of a coordinate, co-equal branch of the Government —
the number of offices or appointments involved can affect the nature of the issue. from acting on the questioned appointments. What is more, we are virtually
Surely, its political character is the same whichever political party may have the assuming in advance that said body — which has not been organized as yet and
largest number of votes in the Commission on Appointments. The big number of whose membership is still undetermined — will not act in harmony with the spirit of
said appointments merely tend to make more manifest the political complexion our Constitution.
thereof and its non-justifiable nature. 12. It is trite to say that certain moral and political aspects of the issue before us
10. In Osmeña vs. Pendatum (L-17144, October 28, 1960), we refused to disturb cannot but produce a strong aversion towards the case of petitioner herein and the
the action of the House of Representatives in suspending a member thereof — hundreds of others appointed under the same conditions as he was. Although
who had made derogatory imputations against the President of the Philippines — members of the bench must always endeavor to minimize the influence of
upon the ground that such imputations constituted a breach of the courtesy due to emotional factors tending to affect the objectivity essential to a fair and impartial
a coordinate branch of the Government. Yet, in the present case, imputations appraisal of the issues submitted for their determination, it is only natural — and, I
similarly derogatory to the same branch of the Government are, in effect, made in venture to add, fortunate (for, otherwise, how could they hope to do justice to their
the majority resolution. fellowmen?) — that they should basically react as other members of the human
I cannot see how such imputations can be reconciled with the position taken by family. This is probably the reason why Justice Douglas of the Federal Supreme
this Court in the Osmeña case and in other cases (Barcelona vs. Baker, 5 Phil., 87; Court of the U.S., said, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688) :
Severino vs. Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612; "Cases of notorious criminals — like cases of small, miserable ones — are apt to
Alejandrino vs. Quezon, 46 Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili make bad law. When guilt permeates a record, even judges sometimes relax and
vs. Francisco, L-4638, May 8, 1951) in which it "fastidiously observed" the theory let the police take shortcuts not sanctioned by constitutional procedures. .... The
of separation of powers (Osmeña vs. Pendatum, supra). Thus, in Santos vs. Yatco harm in the given case may seem excusable. But the practices generated by the
(55 Off. Gaz. 8641), in which a department head was sought to be enjoined from precedent have far-reaching consequences that are harmful and injurious beyond
electioneering, in view of the explicit provision of the Civil Service Act of 1959 measurement.".
(Republic Act No. 2260, section 29), prohibiting all officers and employees in the Let us hope that no such consequences will flow from the precedent established in
civil service, "whether in the competitive or classified, or non-competitive or this case.
unclassified service," from engaging directly or indirectly in partisan political BARRERA, J., dissenting:
activities or taking part in any election except to vote, we held that the issue therein The instant case started with a simple petition for prohibition and mandamus with
raised was one of "impropriety as distinguished from illegality," and that, as such, it preliminary injunction instituted by petitioner Aytona who claims to have been duly
"is not justiciable by this Court." In Mabanag vs. Lopez Vito (78 Phil., 1), we appointed ad interim Governor of the Central Bank, against respondent Castillo
refused to decide, upon the same ground, whether specified numbers of votes who, allegedly accompanied by his correspondent Colonel Gutierrez and a host of
constituted three-fourths of all members of each House of Congress. In Vera vs. heavily armed Philippine Constabulary Rangers, interfered with and prevented the
Avelino (77 Phil., 192), we not only declared that "the judiciary is not the repository petitioner in the discharge of his duties and prerogatives as such Governor of the
Central Bank. During the hearing, however, and immediately thereafter, a great the collection of such information may seem important to a proper discharge of its
amount of extraneous matter affecting persons not parties to the proceedings has functions; and whenever it is deemed desirable that witnesses should be
been introduced into the case and a veritable avalanche of memoranda after examined, the power and the authority to do so is very properly referred to a
memoranda and manifestations after manifestations swelled the records and committee, with any such powers short of final legislative or judicial action as may
helped involve the issues. One among the dozens who asked to be admitted as seem necessary or expedient in the particular case. Such a committee has no
amici curiae, even presented an answer in behalf of the people to support the side authority to sit during a recess of the house which has appointed it, without its
of the respondents. Unfortunately, in the confusion, the case of the immediate permission to that effect. But the house is at liberty to confer such authority if it
parties became obscured by considerations of circumstances and matters for and sees fit.
with which petitioner and respondents are not directly connected.. It is in this connection and evidently in a desire to explain the opinion of Judge
In my opinion, the fundamental questions which this Court is called upon to resolve Cooley that the court made the pronouncement relied upon by respondents, thus: .
in the present case a specifically: . .... The recess here referred to by Judge Cooley we think should be construed to
(1) Is the ad interim, appointment of petitioner Aytona valid when extended? . mean only the intermission between sittings of the same body at its regular or
(2) If so, did it automatically lapse with the ending the term of office of the twelve adjourned session, and not to the interval between the final adjournment of one
Congressmen composing one-half of the membership of the Commission body and the convening of another at the next regular session. When applied to a
Appointments? . legislative body, it means a temporary dismissal and not an adjournment sine die.
(3) May this appointment be legally recalled or withdrawal after Aytona has The conclusion reached by the court can not be otherwise. The case refers to the
qualified? . powers of one house of the state Legislature, with the concurrence of the other, to
Before entering into the discussion of the "propriety, morality and wisdom" of the confer authority upon its own committee to act beyond the duration of the session
appointment, it is necessary, I believe, that the foregoing legal propositions must of the General Assembly. Certainly, Judge Cooley's view that each house has
first be cleared out. power to confer authority to its committee to act during a recess must be
I. The Validity of Aytona's Appointment: . understood to exist only during the life of the house creating the committee. It can
Aytona's ad interim appointment is assailed on the theory that it was not made not go beyond its own existence, that is, beyond its adjournment sine die.
during a "recess" of Congress as provided in paragraph 4, section 10 of Article VII But this ruling is no argument that the Executive's power to make appointments
of the Constitution. It is claimed for the respondents dents that the word "recess" during such adjournment sine die does not exist just because a house of the
means "the intermission between sittings of the same body at its regular or legislature lacks power to authorize its committee to act during the same
adjourned session, and not to the interval between the final adjournment of one adjournment. One refers to the power of a defunct body to act beyond its life; the
body and the convening of another at the next regular session. When applied to a other refers to the power of another authority, the executive, to perform its
legislative body, it means a temporary dismissal, and not adjournment sine die." In functions after the expiration of that other body. Non-existence of the first does not
support of this view, counsel cites the case of Tipton v. Parker, 71 Ark. 193, from mean non-existence of the other.
which the foregoing quotation was taken. It is to be noted that the different counsel advocating the cause of the respondents
An examination of this case, however, discloses that it did not refer to the power of are not even agreed in the application of their interpretation of the word "recess".
the President to make ad interim appointments. The pronouncement was made in Some of them argue that the interregnum which they contend is not recess,
connection with the interpretation of Section 17, Article 5 of the Constitution of the compromises the entire period between the adjournment of the 4th Congress in
State of Arkansas. The case involved the validity of the certificate of the auditor May, 1961 and the opening of the 1st session of the first session of the 5th
with reference to the legality of the expenses of a committee of the State Senate Congress on January 22, 1962, so that all ad interim appointments extended
authorized by the latter to make certain investigations beyond the duration of the during this period are null and void. Others claim that such interregnum is that
session of the General Assembly. The court, in declaring the certificate without period between December 13, 1961, date of adjournment of the last session of the
sanction of law, stated: . 4th Congress, and January 22, 1962. It seems that President Macapagal is of this
"The Senate has no power by resolution of its own to extend its session, and same view because his administrative Order No. 2 specifically refers to all
neither did it have power to such separate resolution to continue its committee, a appointments made after December 13, 1961. Still others, at least one, advanced
mere agency of the body, beyond the term of the body itself which created it." . the theory during the oral argument that the banned period is that between the
in view of the provisions of the aforementioned Section 17, Article 5 of the state adjournment of the 4th Congress in May, and December 30, 1961, excluding
Constitution prescribing "that the regular biennial session of the Legislature shall therefrom the period between this last date and January 22, 1962. Obviously, this
not exceed 60 days, unless by 2/3 vote of the members elected to each house, theory was advanced in an effort to lend validity to the appointments recently made
and section 23 requiring a vote of the majority of each house to enact a law or by President Macapagal, for if the entire period between May or December, 1961
pass a resolution having the force and effect of a law". Apparently an opinion of to January 22, 1962 is held not a recess, but an adjournment sine die, then all
Judge Cooley seemingly to the contrary was cited to refute this view of the court, appointments heretofore made by the present Chief Executive would suffer the
and so the decision went on to say: same defect as those extended by former President Garcia. This last argument is
Each house, says Judge Cooley, must also be allowed to proceed in its own way in unavailing because it, likewise, is untenable, tested upon the same authority cited
by counsel, i.e., that the term "recess" means "the intermission between sittings of makes no distinction, no distinction should be made, especially if to do so would
the same body." Since the 5th Congress has not as yet even convened, the period result in a strained interpretation thereof and defeat the evident purpose of the
between December 30 and January 22 can not be a recess of the 5th Congress framers of the Constitution - in this instance, to render it certain that at times there
because it, definitely, is not an intermission between sittings of the same body. should be, whether the Congress is in session or not, an officer for every office,
In the circumstances, it seems it is an over-statement to say that the term "recess entitled to discharge the duties thereof. (5 Hinds, op. cit., p. 853.) .
has a definite legal meaning in the sense attributed to it in the Tipton vs. Parker II. Lapsing of Aytona's Appointment: .
case. The confusion in the minds of the several counsels for the respondents as to It is contended for the respondents that since 12 members of the Commission on
the application of the alleged meaning of the term, indicates a belabored effort on Appointments ceased to be such upon the expiration of their term of office at
their part to impute a meaning to satisfy their case. Upon the other hand, we find in midnight of December 29, 1961, the Commission on Appointments likewise ceased
"Hinds Precedents of the House of Representatives" (Vol. 5, pp. 852-853), a to exist on the theory that creation can not exist beyond the life of its creator at
legislative interpretation by the United States Senate made during the discussion least with respect to one-half of its members. This seems to stem from the wrong
of the term "recess of the Senate" in connection with the President's1 power to notion that the Commission on Appointments is a creature of the Congress. This
make appointments, as follows: . confuses the Commission on Appointments as a constitutional body with its
The word 'recess' is one of ordinary, not technical, signification, and it is evidently members. The body continued to exist, but only its membership changes
used in the constitutional provision in its common and popular sense. It means in periodically. When the Constitution provides in Section 13 of Article 6 thereof that
Article II, above referred to, precisely what it means in Article III, in which it is again "the Electoral Tribunals and the Commission on Appointments shall be constituted
used. Conferring power upon the executive of a State to make temporary within 30 days after the Senate and the House of Representatives shall have been
appointment of a Senator, it says: . organized with the election of their President and Speaker, respectively", it did not
And if vacancies happen, by resignation or otherwise, during the recess of the mean that the Senate and the House of Representatives thereby create said
legislature of any State, the executive thereof may make temporary appointments bodies, no more than the President can be said to create the Supreme Court by
until the next meeting of the legislature, which shall then fill such vacancies.' . appointing the Justices therein. It simply ordained that the Commission be
It means just what was meant by it in the Article of Confederation, in which it is constituted or organized by electing the members thereof, whose positions have
found in the following provision": . already been created in virtue of Section 12 of the same Constitution. To hold the
The United States in Congress assembled shall have authority to appoint a Electoral Tribunals and the Commission on Appointments are non-existing during
committee to sit in the recess of Congress, it be denominated a committee of the the period from December 30, 1961 to January 22, 1962 (and during the
States, and to consist of one delegate from each State.' . corresponding period every four years thereafter) will result in an absurdity and a
It was evidently intended by the framers of the Constitution that it should mean situation destructive of the normal processes provided in the Constitution. One of
something real, not something imaginary; something actual, not something such absurd results would be that no electoral protest against any elected and
fictitious. They used the word as the mass of mankind then understood it and now proclaimed congressman or senator can be legally filed with the Electoral Tribunals
understand it. It means, in our judgment, in this connection the period of time when within the period prescribe by their rules, that is, within fifteen days following the
the Senate is not sitting in regular or extraordinary session as a branch of the proclamation of the results of the election, which period falls within the time when
Congress, or in extraordinary session for the discharge of executive functions; the Electoral Tribunals (as is the case of Commission on Appointments) are
when its members owe no duty of attendance; when its Chamber is empty; when, allegedly non-existent.
because of its absence, it cannot receive communications from the President or The proceedings in the Constitutional Convention are cited to support the theory
participate as body in making appointments." . that the Commission on Appointments is not a permanent commission. A review of
The Attorney General of the United States was also of this view when he stated: . the records, however, of that convention reveals that what was intended in the
The recess of the Senate during which the President shall have power to fill a proposed draft was to authorize the Commission on Appointments to hold sessions
vacancy that may happen, means the period after the final adjournment of even when the Congress is not in session. The mere fact that such a proposal was
Congress for the session and before the next session begins; while an defeated and, consequently, the word "permanent" was not adopted in the final
adjournment during a session of Congress means a merely temporary suspension text, does not import that the Constitution meant to give an off and on existence to
of business from day to day, or for such brief periods of time as are agreed upon the Commission on Appointments lapsing every four years when the twelve of its
by the joint action of the two houses. The President is not authorized to appoint an members cease to be such. On the contrary, it seems more logical to hold that the
officer during the current holiday adjournment of the Senate, which will have the legal existence of the Commission as well as the Electoral Tribunals continue
effect of an appointment made in the recess occurring between two sessions of the irrespective of the vacancies that may exist in the membership thereof. It is for this
Senate." (President - Appointment Officers - Holiday Recess, 1901, 23 Op. Atty. reason that the personnel of these bodies do not cease periodically, but continue
Gen. 599, (U.S.C.A. Const. Art. 2, Sec. 2[2].. to perform their duties in their respective offices for which they are legally paid their
It is worthwhile to note that our Constitution in paragraph 4, Section 10 of Article salaries by the government. It seems clear, therefore, that the Commission on
VII speaks of "recess" without making any distribution between the sessions one Appointments did not lapse on December 29, 1961. Neither did the appointment of
congress and the sessions of another. And it is trite to say that when the law Aytona lapse on that date because the same could not be acted upon by the
Commission on Appointments during the recess of the Congress. processes can not be made to depend upon the fortunes of political parties, for
III. May the appointment of Aytona be legally recalled or withdrawn after he has there is still the ultimate remedy by the people in all authority. At any rate, as has
qualified for the position to which he was appointed? . already been aptly said: the judiciary is not the repository of remedies for all
Precedents are to the effect that when once an appointment has been extended by political or social evils, and that the judicial department has no power to revise
the Chief Executive who, as is provided in our Constitution, has the sole power of even arbitrary or unfair action of the other departments taken in pursuance of the
appointment subject only to the consent of the Commission on Appointments, and power committed exclusively to those departments by the Constitution..
the appointee has accepted the appointment, the same becomes complete and the May I add: all the scandalous circumstances brought to the attention of this Court
appointing power can not withdraw it except in cases where the tenure of the did not link the petitioner herein, save for the fact that this appointment was
appointee is at the Chief Executive's pleasure or upon grounds justifying removal extended on the same day as those issued under the unusual and irregular
and after due process. This is not because the appointment constitutes a contract circumstances attending the other appointments. If at all, there is evidence in favor
(for truly a public office can not be subject of any contract), but because of the of Aytona to the effect that insofar as he is concerned, his appointment to the
provisions of the Constitution itself to the effect that "no officer or employee in the position of Governor of the Central Bank has been under consideration for a long
Civil Service shall be removed or suspended except for cause as provided by law." time and that he is qualified for the position. It can not, therefore be said that with
If, therefore, the recall or the withdrawal of the appointment of Aytona was not respect to him there was no mature deliberation and due consideration of his
authorized by law, then his assumption of the functions of his office on January 2, qualifications and of the need of the service. he charge was made that the position
1962 was clearly within his legal right and the interference of Castillo, aggravated of Governor of the Central Bank has been vacant for several months and that the
by the assistance or at least the presence of members of the Armed Forces, was President should have filled it earlier. Yet, when the President actually filled it as he
clearly unlawful. did, he is criticized claiming that there was no immediate need for such action in
The foregoing disposes, in my opinion, the legal issue and the rights of the parties view of the fact that there was an Acting Governor. That it was really necessary to
in the present case. But against these, to me, clear mandates of the Constitution fill the position is evidenced by the act of President Macapagal himself in making
and the legal and judicial precedents, respondents have appealed to this Court for his own appointment hardly twenty-four hours after he recalled the appointment of
it to exercise "judicial statesmanship" invoking the spirit of the Constitution. It is Aytona.
claimed that there was a manifest abuse of power by the outgoing President in Summarizing, I would say that all the circumstances cited by the respondents that
extending, on the eve of the expiration of his term, some three hundred and fifty ad have surrounded the issuance of the appointments in question, have to do with the
interim appointments to fill an equal number of vacancies in the different branches mode or manner of the exercise of the authority to make the appointment, quite
of the government; that no proper consideration was given of the merits of the apart from the existence of the authority itself. The observance of good faith,
appointees, it appearing that in the case of at least some of the appointees to the morality and propriety by the other two co-equal coordinate departments in the
judiciary, their assurance of an immediate assumption of office or the taking of oath performance of their functions must be secured by their sense of duty and official
was made a condition precedent to the appointments, and that there was a wild oath hand not by any supervisory power of the courts..
scramble in Malacañan among the appointees on the night of December 29. We The role of courts in our scheme of government is to interpret the law and render
are scandalized by this and expect the Court to apply the remedy. What of the justice under it. This simply means that whatever may be our own personal
proceedings in Congress during the last day of session when bills after bills are feelings as to the propriety, morality, or wisdom of any official act or actuation of a
passed in a manner not too dissimilar to the described scene in Malacañan? Can public officer or any agency of the government within their respective competence
the Supreme Court be expected to correct this too by declaring all such laws as brought to the attention of the Court for adjudication, they should not be permitted
invalid just as we are asked to invalidate these appointments? . to prevail over clear legal considerations, for ours is a regime under the Rule of
Be this as it may, whatever may be our personal views on this matter, I agree with Law..
Mr. Justice Concepcion that not all wrongs or even abuse of power can be In view of the foregoing, I am constrained to register my dissent.
corrected by the exercise of the high prerogatives of the Supreme Court vested in
it by the Constitution. As I take it, the higher and more delicate is the prerogative,
the greater should be the degree of self-restraint in the exercise thereof, lest the
fine and tested scale of checks and balances set up by the Constitution be jarred.
In the same manner that we expect circumspection and care, even double care, on
the part of the other two co-equal coordinate departments of the government, so
must we be most cautious and slow in judging the morality, propriety and good
faith involved in the actuations of the other departments in matters coming within
their competence. The remedy, I believe, under the circumstances is with the
Commission on Appointments to which the appointments have been submitted.
The more fact that it is expected that the Commission on Appointments would be
controlled by the party of the outgoing President is immaterial, because legal
 the end of his, term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.
On the other hand, appointments to fill vacancies in the Supreme Court during the
period mentioned in the provision just quoted could seemingly be justified by
another provision of the same Constitution Section 4 (1) of Article VIII which states:
Sec. 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. ** **. Any vacancy shall be filled within ninety days from the
occurrence thereof.
Also pertinent although not specifically discussed is Section 9 of the same Article
VIII which provides that for the lower courts, the President shall issue the
appointments — from a list of at least three nominees prepared by the Council for
every vacancy — within ninety days from the submission of the list.
A.M. No. 98-5-01-SC November 9, 1998 The view was then expressed by Senior Associate Justice Florenz D. Regalado,
In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Consultant of the Council, who had been a member of the Committee of the
Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Executive Department and of the Committee on the Judicial Department of the
Bago City and of Branch 24, Cabananatuan City, respectively. 1986 Constitutional Commission, that on the basis of the commission's records,
the election ban had no application to appointments to the Court of Appeals.
NARVASA, C.J.: Without any extended discussion or any prior research and study on the part of the
The question presented for resolution in the administrative matter at bar is other Members of the JBC, this hypothesis was accepted, and was then submitted
whether, during the period of the ban on appointments imposed by Section 15, to the President for consideration, together with the Council's nominations for eight
Article VII of the, Constitution, the President is nonetheless required to fill (8) vacancies in the Court of Appeals.
vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII. A corollary On April 6, 1998 the Chief Justice received an official communication from the
question is whether he can make appointments to the judiciary during the period of Executive Secretary transmitting the appointments of eight (8) Associate Justices
the ban in the interest of public service. of the Court of Appeals all of which had been duly signed on March 11, 1998 by
Resolution of the issues is needful; it will preclude a recurrence of any conflict in His Excellency the President. In view of the fact that all the appointments had been
the matter of nominations and appointments to the Judiciary — as that here sign on March 11, 1998 — the day immediately before the commencement of the
involved — between the Chief Executive, on the one hand, and on the other, the ban on appointments imposed by Section 15, Article VII of the Constitution — who
Supreme Court and the Juducial and Bar Council over which the Court exercises impliedly but no less clearly indicated that the President's Office did not agree with
general supervision and wields specific powers including the assignment to it of the hypothesis that appointments to the Judiciary were not covered by said ban,
other functions and duties in addition to its principal one of recommending the Chief Justice resolved to defer consideration of nominations for the vacancy in
appointees to the Judiciary, and the determination of its Members emoluments.1 the Supreme Court created by the retirement of Associate Justice Ricardo J.
I. The Relevant Facts Francisco, specially considering that the Court had scheduled sessions in Baquio
The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the City in April, 1998, that the legislature's representatives to the JBC were occupied
relevant facts and is for that reason hereunder reproduced in full. with the forthcoming elections, and that a member of the Council was going on a
Referred to the Court En Banc by the Chief Justice are the appointments signed by trip out of the country.
His Excellency the President under date of March 30, 1998 of Hon. Mateo A. On May 4, 1998, the Chief Justice received a letter from the President, addressed
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of to the JBC, requesting transmission of the "list of final nominees" for the vacancy
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively. The "no later than Wednesday, May 6, 1998" in view of the duty imposed on him by the
appointments were received at the Chief Justice's chambers on May 12, 1998. The Constitution "to fill up the vacancy ** within ninety (90) days from February 13,
referral was made in view of the serious constitutional issue concerning said 1998, the date the present vacancy occurred.
appointments arising from the pertinent antecedents. On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice
The issue was first ventilated at the meeting of the Judicial and Bar Council on for "guidance" respecting the expressed desire of the "regular members" of the
March 9, 1998. The meeting had been called, according to the Chief Justice as Ex JBC to hold a meeting immediately to fill up the vacancy in the Court in line with
Officio Chairman, to discuss the question raised by some sectors about the the President's letter of May 4. The Chief Justice advised Secretary Bello to await
"constitutionality of ** appointments" to the Court of Appeals, specifically, in light of the reply that he was drafting to the President's communication, a copy of which he
the forthcoming presidential elections. Attention was drawn to Section 15, Article would give the Secreatary the following day.
VII of the Constitution reading as follows: On May 6, 1998 the Chief Justice sent his reply to the President. He began by
Sec. 15. Two months immediately before the next presidential elections and up to stating that no sessions had been scheduled for the Council until after the May
elections for the reason that apparently the President's Office did not share the ban provision (Article VII, Sec. 15) ** applies only to executive appointments or
view posited by the JBC that Section 15, Article VII of the Constitution had no appointments in the executive branch of government," the whole article being
application to JBC-recommendend appointments — the appointments to the Court "entitled 'EXECUTIVE DEPARTMENT."' He also observed that further proof of his
of Appeals having been all uniformly dated March 11, 1998, before the theory "is the fact that appointments to the judiciary have special, specific
commencement of the prohibition in said provision — thus giving rise to the "need provisions applicable to them" (citing Article VIII, Sec, 4 (1) and Article VIII, Section
to undertake further study of the matter," prescinding from "the-desire to avoid any 9. In view thereof, he "firmly and respectfully reiterate(d) ** (his) request for the
constitutional isssue regarding the appointment to the mentioned vacancy" and the Judicial and Bar Council to transmit ** the final list of nominees for the lone
further fact that "certain senior members of the Court of Appeals ** (had) asked the Supreme Court vacancy."
Council to reopen the question of their exclusion on account of age from such The Chief Justice replied to the letter the following day, May 8, 1998. Since the
(final) list." He closed with the assurance that the JBC expected to deliberate on Chief Justice's letter explains the issue quite, plainly, it is here quoted in full.
the nominations "forthwith upon the completion of the coming elections." The letter Thank you for your letter of May 7, 1998, responding to my own communication of
was delivered to Malacañang at about 5 o'clock in the afternoon of May 6, 1998 May 6, 1998 which, I would like to say reflects the collective sentiments of my
and a copy given to the Office of Justice Secretary Bello shortly before that hour. colleagues in the Supreme Court. Knowing how busy you are, I will deal
It would appear, however, that the Justice Secretary and the regular members of straightaway with the points set out in your letter.
the Council had already taken action without awaiting the Chief Justice's promised The dating of the latest appointments to the Court of Appeals was adverted to
response to the President's letter of May 4, 1998. On that day, May 6, 1998, they merely to explain how we in the Court and the JBC came to have the impression
met at some undisclosed place, deliberated, and came to an agreement on a that you did not share the view expressed in the JBC minutes of March 9, 1998
resolution which they caused to be reduced to writing and thereafter signed. In that that there is no election ban with regard to the JBC appointments. Be this as it
two-page Resolution they drew attention to Section 4 (1), Article VIII of the may, the Court feels that there is a serious question concerning the matter in light
Constitution (omitting any mention of Section 15, Article VII) as well as to the of the seemingly inconsistent provision of the Constitution. The first of these is
President's letter of May 4 in which he "emphatically requested that the required Section 15, Article VII, which reads:
list of final nominees be submitted to him;" and pointing out that the "Council would Sec. 15. Two months immediately before the next presidential elections and up to
be remiss in its duties" should it fail to submit said nominations, closed with an the end of his term, a President or Acting President shall not make appointments,
appeal that the Chief Justice convene the Council for the purpose "on May 7, except temporary appointments to executive positions when continued vacancies
1998, at 2:00 o'clock in the afternoon." This Resolution they transmitted to the therein will prejudice public service or endanger public safety.
Chief Justice together with their letter, also dated May 6, in which they emphasized The second is Section 4 (1) of Article VIII which states:
that "we are pressed for time" again drawing attention to Section 4 (1). Article VIII Sec. 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
of the Constitution (and again omitting any reference to Section 15, Article VII). Associate Justices. ** ** Any vacancy shall be filled within ninety days from the
They ended their letter with the following intriguing paragraph: occurrence thereof.
Should the Chief Justice be not disposed to call for the meeting aforesaid, the As you can see, Your Excellency, Section 15 of Article VII imposes a direct
undersigned members constituting the majority will be constrained to convene the prohibition on the President: he "shall not make appointments" within the period
Council for the purpose of complying with its Constitutional mandate: mentioned, and since there is no specification of which appointments are
It seems evident, as just intimated, that the resolution and the covering letter were proscribed, the same may be considered as applying to all appointments of any
deliberated on, prepared and signed hours before delivery of the Chief Justice's kind and nature. This is the general rule then, the only exception being only as
letter to the President and the Justice Secretary. regards "executive positions" as to which "temporary appointments may be made
Since the Members of the Council appeared determined to hold a meeting within the interdicted period "when continued vacancies therein will prejudice
regardless of the Chief Justice's wishes, the latter convoked the Council to a public service or endanger public safety." As the exception makes reference only to
meeting at 3 o'clock in the afternoon of May 7, 1998. Present at the meeting were "executive" positions, it would seem that "judicial" positions are covered by the
the Chief Justice, Secretary Bello, ex officio member and the regular members of general rule.
the Council: Justice Regino Hermosisima. Atty. Teresita Cruz Sison, Judge Cesar On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the
C. Peralejo. Also present, on invitation of the Chief Justice, were Justices Hilario Supreme Court "shall be filled within ninety days from the occurrence thereof."
G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose Unlike Section 15 Article VII, the duty of filling the vacancy is not specifically
C. Vitug, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. Martinez, imposed on the President; hence, it may be inferred that it is a duty shared by the
Leonardo A. Quisumbing and Fidel P. Purisima. The Chief Justice reviewed the Judicial and Bar Council and the President.
events leading to the session, and after discussion, the body agreed to give the Now, in view of the general prohibition in the first-quoted provision, how is the
President time to answer the Chief Justice's letter of May 6, 1998. requirement of filling in the Court within ninety days to be construed? One
On May 7, 1998, the Chief Justice received a letter from his Excellency the interpretation that immediately suggests itself is that Section 4 (1), Article VIII is a
President in reply to his letter of May 6 (which the President said had been general provision while Section 15, Article VII is a particular one; that is to say,
"received early this morning"). The President expressed the view that "the election- normally, when there are no presidential elections — which after all, occur only
every six years — Section 4 (1), Article VIII shall apply: vacancies in the Supreme of two (2) Judges of the Regional Trial Court mentioned above. This places on the
Court shall be filled within 90 days; but when (as now) there are presidential Chief Justice the obligation of acting thereon: i.e., transmitting the appointments to
elections, the prohibition in Section 15, Article VII comes into play: the President the appointees so that they might take their oaths and assume the duties of their
shall not make any appointments. The reason for said prohibition, according to Fr. office. The trouble is that in doing so, the Chief Justice runs the risk of acting in a
J. Bernas, S.J., an authority on Constitutional Law and himself a member of the manner inconsistent with the Constitution, for these appointments appear prima
Constitutional Commission, is "(i)n order not to tie the hands of the incoming facie, at least, to be expressly prohibited by Section 15, Article VII of the Charter.
President through midnight appointments." Another interpretation is that put forth in This circumstance, and the referral of the constitutional question to the Court in
the Minutes of the JBC meeting of March 9, 1998. virtue of the Resolution of May 8, 1998, supra operate to raise a justiciable issue
I must emphasize that the validity of any appointment to the Supreme Court at this before the Court, an issue of sufficient importance to warrant consideration and
time hinges on the correct interpretation of the foregoing sections of the adjudication on the merits.
Constitution. On account of the importance of the question, I consulted the Court Accordingly, the Court Resolved to (1) CONSIDER the case at bar an
about it but, as I stated in my letter of May 6, 1998, "it declined to take any administrative matter and cause it to be appropriately docketed: (2) to DIRECT the
position, since obviously there had not been enough time to delivarate on the Clerk of Court to immediately serve copies of this Resolution on (a) the Office of
same ** (although it) did agree that further study wass necessary **. the President, (b) the Office of the Solicitor General. (c) Hon. Mateo A. Valenzuela,
Since the question has actually come up, and its importance cannot be gainsaid, and (d) Hon. Placido B. Vallarta (at their addresses recorded in the Judicial and
and it is the Court that is empowered under the Constitution to make an Bar Council); and (3) to REQUIRE the Office of the President, the Office of the
authoritative interpretation of its (provisions) or of those of any other law. I believe Solicitor General, Hon. Mateo A. Valenzuela, and Hon. Placido B. Vallarta to file
that the Court may now perhaps consider the issue ripe for determination and their comments on this Resolution within fifteen (15) days from notice thereof.
come to grips with it, to avoid any possible polemics concerning the matter. The Court further Resolved that (1) pending the foregoing proceedings and the
However the Court resolves the issue, no serious prejudice will be done. Should deliberation by the Court on the matter, and until further orders, no action be taken
the Court rule that the President is indeed prohibited to make appointments in a on the appointments of Hon. Valenzuela and Hon. Vallarta which in the meantime
presidential election year, then any appointment Attempted within the proscribed shall be held in abeyance and not given any effect and said appointees shall
period would be void anyway. If the Court should adjudge that the ban has no refrain from taking their oath of office; and that (2) exercising its power of
application to appointments to the Supreme Court, the JBC may submit supervision over the Judicial and Bar Council, said Council and its ex officio and
nominations and the President may make the appointment forthwith upon such regular Members herein mentioned be INSTRUCTED, as they are herby
adjudgment. INSTRUCTED, to defer all action on the matter of nominations to fill up the lone
The matter is a delicate one, quite obviously, and must thus be dealt with with vacancy in the Supreme Court or any other vacancy until further orders.
utmost circumspection, to avoid any question regarding the validity of an SO ORDERED.
appointment to the Court at this time, or any accusation of "midnight" appointments II The Relevant Pleadings
or rash hasty action on the part of the JBC or the President In compliance with the foregoing Resolution, the following pleadings and other
In view thereof, and upon the advice and consent of the Members of the Court, I documents were filed; to wit:
am requesting the regular Members of the Judicial Bar Council to defer action on 1) the manifestation dated May 28, 1998 of Hon. Mateo A.Valenzuela in
the matter until further device by the Court. I earnestly make the same request of compliance with the Resolution of May 14, 1998;
you, Your Excellency. I assure you, however that as befits a matter in which the 2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta in compliance with the
Chief Executive has evinced much interest, my colleagues and I will give it same Resolution;
preferential and expeditious attention and consideration. To this end, I intend to 3) the "Comments" of Hon. Valenzuela dated May 25, 1998;
convene the Court by next week, at the latest. 4) his "Addendum to Comments" dated June 8, 1998;
On May 8, 1998, again on the insistence of the regular Members of the JBC, 5) his "Explanation" dated June 8, 1998;
another meeting was held at which were present the Chief Justice, the Secretary 6) the letter of Hon. Vallarta dated June 8, 1998;
of Justice and the three regular, Members above mentioned, as well as Justices 7) his letter dated June 16, 1998;
Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. 8) the "Explanation" of Hon.Valenzuela dated July 17, 1998: and
Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente V. Mendoza, Artemio V. 9) the "Comment" of the Office of the Solicitor General dated August 5, 1998.
Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. A. Valenzuela's Assumption of Duty
The meeting closed with a resolution that "the constitutional provisions ** (in as Judge on May 14, 1998
question) be referred to the Supreme Court En Banc for appropriate action,
together with the request that the Supreme Court consider that the ninety-day In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia :
period stated in Section 4 (1), Article VIII be suspended or interrupted in view of ** that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62,
the peculiar circumstances. **. Bago City, before Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod City,
On May 12, 1998, the Chief Justice received from Malacañang the appointments pursuant to the Appointment dated March 30, 1998, (and) he also, reported for
duty as such before said RTC Branch 62, Bago City ** (and that he did so) The journal of the Commission which drew up the present Constitution discloses
"faultless!y," ** without knowledge of the on-going deliberations on the matter. that the original proposal was to have an eleven-member Supreme Court.
At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta, Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen.
dated March 30, 1998 — addressed to them "Thru: the Chief Justice, Supreme He also wished to ensure that that number would not be reduced for any
Court of the Philippines, Manila, and which had been sent to and received by the appreciable length of time (even only temporarily), and to this end proposed that
Chief Justice on May 12, 19982 — were still in the latter's Office, and had not been any vacancy. "must be filled within two months from the date that the vacancy
transmitted to them precisely because of the serious issue concerning the validily occurs." His proposal to have a 15-member Court was not initially adopted.
of their appointments. Indeed, one of the directives in the Resolution of May 14, Persisting however in his desire to make certain that the size of the Court would
1998 was that "pending ** deliberatibn by the Court on the matter, and until further not be decreased for any substantial period as a result of vacancies, Lerum
orders, no action be taken on the appointments ** which in the meantime shall be proposed the insertion in the provision (anent the Court's membership) of the same
held in abeyance and not given any effect **." For this reason, by Resolution dated mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED
June 23, 1998, the Court required Valenzuela to EXPLAIN by what authority he WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to
had taken his oath on May 14, 1998 as Judge of Branch 62 of the RTC at Bago suggestions to make the period three, instead of two, months. As thus amended,
City. In his "Explanation" dated July 17, 1998. Valenzuela stated that he did so the proposal was approved.4 As it turned out; however, the Commission ultimately
because on May 7, 1998 he "received from Malacañang copy of his appointment agreed on a fifteen-member Court.5 Thus it was that the section fixing the
**" which contained the following direction: "By virtue hereof, you may qualify and composition of the Supreme Court came to include a command to fill up any
enter upon the performance of the duties of the office **." vacancy therein within 90 days from its occurrence.
The Court then deliberated on the pleadings and documents above mentioned, in
relation to the facts and circumstances on record and thereafter Resolved to In this connection, it may be pointed out that that instruction that any "vacany shall
promulgate the following opinion. be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII)
III. The Relevant Constitutional Provisions contrasts with the prohibition Section 15, Article VII, which is couched in stronger
The provisons of the Constitution material to the inquiry at bar read as follows:3 negative language — that "a President or Acting President shall not make
Sec. 15, Article VII: appointments. . ."
Two months immediately before the next presidential elections and up to the end The Commission later approved a proposal of Commissioner Hilario G. Davide, Jr.
of his term, a President or Acting President shall not make appointments, except (now a Member of this Court) to add to what is now Section 9 of Article VIII, the
temporary appointments to executive positions when continued vacancies therein following paragraph: WITH RESPECT TO LOWER COURTS, THE PRESIDENT
will prejudice public service or endanger public safety. SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE
Sec. 4 (1), Article VIII : SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council to the
The Supreme Court shall be composed of a Chief Justice and fourteen Associate President).6 Davide stated that his purpose was to provide a "uniform rule" for
Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven lower courts. According to him, the 90-day period should be counted from
Members. Any vacancy shall be filled within ninety days from the occurrence submission of the list of nominees to the President in view of the possibility that the
thereof. President might reject the list submitted to him and the JBC thus need more time
to submit a new one.7
Sec. 9, Article VIII : On the other hand, Section 15, Article VII — which in effect deprives the President
The members of the Supreme Court and judges in lower courts shall be appointed of his appointing power "two months immediately before the next presidential
by the President from a list of at least three nominees prepared by the Judicial and elections up to the end of his term" — was approved without discussion.
Bar Council for, every vacancy. Such appointments need no confirmation. VI. Analysis of Provisions
For the lower courts, the President shall issue the appointments within ninety days Now, it appears that Section 15, Article VI is directed against two types of
from the submission of the list. appointments: (1) those made for buying votes and (2) those made for partisan
IV. The Court's View considerations. The first refers to those appointments made within the two months
The Court's view is that during the period stated in Section 15. Article VII of the preceding a Presidential election and are similar to those which are declared
Constitution — "(t)wo months immediatey before the next presidential elections elections offenses in the Omnibus Election Code, viz.:8
and up to the end his term" — the President is neither required to make Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:
appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of (a) Vote-buying and vote-selling. — (1) Any person who gives, offer or promises
Article VIII simply mean that the President is required to fill vacancies in the courts money or anything of value gives or promises any office or employment, franchise
within the time frames provided therein unless prohibited by Section 15 of Article or grant, public or private, or makes or offers to make an expenditure, directly or
VII. It is not noteworthy that the prohibition on appointments comes into effect only indirectly, or cause an expenditure to be made to any person, association,
once every six years. corporation, entity, or community in order to induce anyone or the public in general
V Intent of the Constitutional Commission to vote for or against any candidate or withhold his vote in the election, or to vote
for or against any aspirant for the nomination or choice of a candidate in a yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs
convention or similar selection process of a political party. the need for avoiding delays in filling up of court vacancies or the disposition of
xxx xxx xxx some cases. Temporary vacancies can abide the period of the ban which,
(g) Appointment of new employees, creation of new position, promotion, or giving incidentally and as earlier pointed out, comes to exist only once in every six years.
salary increases. — During the period of forty-five days before a regular election Moreover, those occurring in the lower courts can be filled temporarily by
and thirty days before a regular election and thirty days before a special election, designation. But prohibited appointments are long-lasting and permanent in their
(1) any head, official or appointing officer of a government office, agency or effects. They may, as earlier pointed out, their making is considered an election
instrumentality, whether national or local, including government-owned or offense.
controlled corporations, who appoints or hires any new employee, whether To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article
provisional, temporary, or casual, or creates and fills any new position, except VIII should prevail over Section 15 of Article VII, because they may be considered
upon prior authority of the Commission. The Commission shall not grant the later expressions of the people when they adopted the Constitution, it suffices to
authority sought unless, it is satisfied that the position to be filled is essential to the point out that the Constitution must be construed in its entirely as one, single
proper functioning of the office or agency concerned, and that the position shall not instrument.
be filled in a manner that may influence the election. To be sure, instances may be conceived of the imperative need for an
The second type of appointments prohibited by Section 15, Article VII consist of appointment, during the period of the ban, not only in the executive but also in the
the so-called "midnight" appointments. In Aytona v. Castillo,9 it was held that after Supreme Court. This may be the case should the membership of the Court be so
the proclamation of Diosdado Macapagal as duly elected President, President reduced that it will have no quorum, or should the voting on a particularly important
Carlos P. Garcia, who was defeated in his bid for reelection, became no more than question requiring expeditious resolution be evenly divided. Such a case, however,
a "caretaker" administrator whose duty was to "prepare for the transfer of authority is covered by neither Section 15 of Article VII nor Sections 4 (1) and 9 of Article
to the incoming President." Said the Court: VIII.12
The filling up of vacancies in important positions, if few, and so spaced as to afford VII. A Last Word
some assurance of deliberate action and careful consideration of the need for the A final word, concerning Valenzuela's oath-taking and "reporting for duty" as
appointment and the appointee's qualifications may undoubtedly be permitted. But Presiding Judge of RTC Branch 62, Bago City, on May 14, 1998.13 Standing
the issuance of 350 appointments in one night and the planned induction of almost practice is for the originals of all apointments to the Judiciary — from the highest to
all of them a few hours before the inauguration of the new President may, with the lowest court — to be sent by the Office of the President to the Office of the
some reason, be regarded by the latter as an abuse of Presidential prerogatives, Chief Justice, the appointments being addressed to the appointee's "Thru: the
the steps taken being apparently a mere partisan effort to fill all vacant positions Chief Justice, Supreme Court Manila." It is the Clerk of Court of the Supreme Court
irrespective of fitness and other conditions, and thereby to deprive the new in the Chief Justice's behalf, who thereafter advises the individual appointee's of
administration of an opportunity to make the corresponding appointments. their appointments and also of the date of commencement of the pre-requisite
As indicated, the Court recognized that there may well be appointments to orientation seminar to be conducted by the Philippine Judicial Academy for new
important positions which have to be made even after the proclamations of a new Judges. The rationale of this procedure is salutary and readily precieved. The
President. Such appointments, so long as they are "few and so spaced as to afford procedure ensures the authenticity of the appointments, enables the Court,
some assurance of deliberate action and careful consideration of the need for the particularly the Office of the Court Administrator, to enter in the appropriate records
appointment and the appointee's qualifications,"10 can be made by the outgoing all appointments to the Judiciary as well as other relevant data such as the dates
President. Accordingly, several appointments made by President Garcia, which of qualification, the completion by the appointee's of their pre-requisite orientation
were shown to have been well considered, were upheld.11 seminars, their assumption of duty, etc.
Sec. 15, Article VII has a broader scope than the Aytona ruling. It may not The procedure also precludes the possibility, however remote of Judges acting on
unreasonably be deemed to contemplate not only "midnight" appointments — spurious or otherwise defective appointments. It is obviously not advisable, to say
those made obviously for partisan reasons as shown by their number and the time the least, for a Judge to take his oath of office and enter upon the performance of
of their making — but also appointments of the Presidential election. his duties on the basis alone of a document purporting to be a copy of his
On the other hand, the exception in the same Section 15 of Article VII — allowing appointment coming from Malacañang, the authenticity of which has not been
appointments to be made during the period of the ban therein provided — is much verified from the latter or the Office of the Court Administrator; or otherwise to
narrower than that recognized in Aytona. The exception allows only the making of begin performing his duties as Judge without the Court Administrator knowing of
temporary appointments to executive positions when continued vacancies will that fact. The undesirability of such a situation is illustrated by the case of Judge
prejudice public service or endanger public safety. Obviously, the article greatly Valenzuela who acted, with no little impatience or rashness, on a mere copy of his
restricts the appointing power of the President during the period of the ban. supposed appointment without having received any formal notice from this Court
Considering the respectives reasons for the time frames for filling vacancies in the and without verifying the authenticity of the appointment or the propriety of taking
courts and the restriction on the President's power of appointments, it is this oath on the basis thereof. Had he bothered to inquire about his appointment from
Court's view that, as a general proposition, in case of conflict, the former should the Court Administrator's Office, he would havebeen informed of the question
concerning it and the Court's injunction. respective motions for reconsideration. Also filing a motion for reconsideration was
VIII. Conclusion Senator Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.
The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the Office We summarize the arguments and submissions of the various motions for
of the Chief Justice on May 14, 998) were unquestionably made during the period of the ban.
Consequently, they come within the operation of the first prohibition relating to appointments which
reconsideration, in the aforegiven order:
are considered to be for the purpose of buying votes or influencing the election. While the filling of Soriano
vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of 1. The Court has not squarely ruled upon or addressed the issue of whether or not
any compelling reason to justify the making of the appointments during the period of the ban. On the power to designate the Chief Justice belonged to the Supreme Court en banc.
the other hand, as already discussed, there is a strong public policy for the prohibition against 2. The Mendoza petition should have been dismissed, because it sought a mere
appointments made within the period of the ban.
declaratory judgment and did not involve a justiciable controversy.
In view of the foregoing considerations, the Court Resolved to DECLARE VOID the appointments
signed by His Excellency the President under date of March 30, 1998 of Hon. Mateo A. Valenzuela 3. All Justices of the Court should participate in the next deliberations. The mere
and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of fact that the Chief Justice sits as ex officio head of the JBC should not prevail over
Branch 24, Cabanatuan City, respectively and to order them, forthwith on being served with notice the more compelling state interest for him to participate as a Member of the Court.
of this decision, to forthwith CEASE AND DESIST from discharging the office of Judge of the Tolentino and Inting
Courts to which they were respectively appointed on March 30, 1998. This without prejudice to 1. A plain reading of Section 15, Article VII does not lead to an interpretation that
their being considered anew by the Judicial and Bar Council for re-nomination to the same
positons.
exempts judicial appointments from the express ban on midnight appointments.
IT IS SO ORDERED. 2. In excluding the Judiciary from the ban, the Court has made distinctions and has
created exemptions when none exists.
G.R. No. 191002 April 20, 2010 3. The ban on midnight appointments is placed in Article VII, not in Article VIII,
ARTURO M. DE CASTRO, Petitioner, because it limits an executive, not a judicial, power.
vs. 4. Resort to the deliberations of the Constitutional Commission is superfluous, and
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - is powerless to vary the terms of the clear prohibition.
ARROYO, 5. The Court has given too much credit to the position taken by Justice Regalado.
On March 17, 2010, the Court promulgated its decision, holding: Thereby, the Court has raised the Constitution to the level of a venerated text
WHEREFORE, the Court: whose intent can only be divined by its framers as to be outside the realm of
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and understanding by the sovereign people that ratified it.
G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being 6. Valenzuela should not be reversed.
premature; 7. The petitioners, as taxpayers and lawyers, have the clear legal standing to
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 question the illegal composition of the JBC.
for lack of merit; and Philippine Bar Association
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial 1. The Court’s strained interpretation of the Constitution violates the basic principle
and Bar Council: that the Court should not formulate a rule of constitutional law broader than what is
(a) To resume its proceedings for the nomination of candidates to fill the vacancy required by the precise facts of the case.
to be created by the compulsory retirement of Chief Justice Reynato S. Puno by 2. Considering that Section 15, Article VII is clear and straightforward, the only duty
May 17, 2010; of the Court is to apply it. The provision expressly and clearly provides a general
(b) To prepare the short list of nominees for the position of Chief Justice; limitation on the appointing power of the President in prohibiting the appointment of
(c) To submit to the incumbent President the short list of nominees for the position any person to any position in the Government without any qualification and
of Chief Justice on or before May 17, 2010; and distinction.
(d) To continue its proceedings for the nomination of candidates to fill other 3. The Court gravely erred in unilaterally ignoring the constitutional safeguard
vacancies in the Judiciary and submit to the President the short list of nominees against midnight appointments.
corresponding thereto in accordance with this decision. 4. The Constitution has installed two constitutional safeguards:- the prohibition
SO ORDERED. against midnight appointments, and the creation of the JBC. It is not within the
Motions for Reconsideration authority of the Court to prefer one over the other, for the Court’s duty is to apply
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland the safeguards as they are, not as the Court likes them to be.
B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420), as 5. The Court has erred in failing to apply the basic principles of statutory
well as intervenors Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del construction in interpreting the Constitution.
Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong Alyansang 6. The Court has erred in relying heavily on the title, chapter or section headings,
Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers despite precedents on statutory construction holding that such headings carried
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. very little weight.
Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed their 7. The Constitution has provided a general rule on midnight appointments, and the
only exception is that on temporary appointments to executive positions. legis (ordinary meaning) would have obviated dwelling on the organization and
8. The Court has erred in directing the JBC to resume the proceedings for the arrangement of the provisions of the Constitution. If there is any ambiguity in
nomination of the candidates to fill the vacancy to be created by the compulsory Section 15, Article VII, the intent behind the provision, which is to prevent political
retirement of Chief Justice Puno with a view to submitting the list of nominees for partisanship in all branches of the Government, should have controlled.
Chief Justice to President Arroyo on or before May 17, 2010. The Constitution 3. A plain reading is preferred to a contorted and strained interpretation based on
grants the Court only the power of supervision over the JBC; hence, the Court compartmentalization and physical arrangement, especially considering that the
cannot tell the JBC what to do, how to do it, or when to do it, especially in the Constitution must be interpreted as a whole.
absence of a real and justiciable case assailing any specific action or inaction of 4. Resort to the deliberations or to the personal interpretation of the framers of the
the JBC. Constitution should yield to the plain and unequivocal language of the Constitution.
9. The Court has engaged in rendering an advisory opinion and has indulged in 5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable
speculations. and in accord with the Constitution.
10. The constitutional ban on appointments being already in effect, the Court’s BAYAN, et al.
directing the JBC to comply with the decision constitutes a culpable violation of the 1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
Constitution and the commission of an election offense. petition did not present a justiciable controversy. The issues it raised were not yet
11. The Court cannot reverse on the basis of a secondary authority a doctrine ripe for adjudication, considering that the office of the Chief Justice was not yet
unanimously formulated by the Court en banc. vacant and that the JBC itself has yet to decide whether or not to submit a list of
12. The practice has been for the most senior Justice to act as Chief Justice nominees to the President.
whenever the incumbent is indisposed. Thus, the appointment of the successor 2. The collective wisdom of Valenzuela Court is more important and compelling
Chief Justice is not urgently necessary. than the opinion of Justice Regalado.
13. The principal purpose for the ban on midnight appointments is to arrest any 3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the
attempt to prolong the outgoing President’s powers by means of proxies. The Court has violated the principle of ut magis valeat quam pereat (which mandates
attempt of the incumbent President to appoint the next Chief Justice is undeniably that the Constitution should be interpreted as a whole, such that any conflicting
intended to perpetuate her power beyond her term of office. provisions are to be harmonized as to fully give effect to all). There is no conflict
IBP-Davao del Sur, et al. between the provisions; they complement each other.
1. Its language being unambiguous, Section 15, Article VII of the Constitution 4. The form and structure of the Constitution’s titles, chapters, sections, and
applies to appointments to the Judiciary. Hence, no cogent reason exists to draftsmanship carry little weight in statutory construction. The clear and plain
warrant the reversal of the Valenzuela pronouncement. language of Section 15, Article VII precludes interpretation.
2. Section 16, Article VII of the Constitution provides for presidential appointments Tan, Jr.
to the Constitutional Commissions and the JBC with the consent of the 1. The factual antecedents do not present an actual case or controversy. The clash
Commission on Appointments. Its phrase "other officers whose appointments are of legal rights and interests in the present case are merely anticipated. Even if it is
vested in him in this Constitution" is enough proof that the limitation on the anticipated with certainty, no actual vacancy in the position of the Chief Justice has
appointing power of the President extends to appointments to the Judiciary. Thus, yet occurred.
Section 14, Section 15, and Section 16 of Article VII apply to all presidential 2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court
appointments in the Executive and Judicial Branches of the Government. and the Judiciary runs in conflict with long standing principles and doctrines of
3. There is no evidence that the framers of the Constitution abhorred the idea of an statutory construction. The provision admits only one exception, temporary
Acting Chief Justice in all cases. appointments in the Executive Department. Thus, the Court should not distinguish,
Lim because the law itself makes no distinction.
1. There is no justiciable controversy that warrants the Court’s exercise of judicial 3. Valenzuela was erroneously reversed. The framers of the Constitution clearly
review. intended the ban on midnight appointments to cover the members of the Judiciary.
2. The election ban under Section 15, Article VII applies to appointments to fill a Hence, giving more weight to the opinion of Justice Regalado to reverse the en
vacancy in the Court and to other appointments to the Judiciary. banc decision in Valenzuela was unwarranted.
3. The creation of the JBC does not justify the removal of the safeguard under 4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-
Section 15 of Article VII against midnight appointments in the Judiciary. day mandate to fill any vacancy lasts until August 15, 2010, or a month and a half
Corvera after the end of the ban. The next President has roughly the same time of 45 days
1. The Court’s exclusion of appointments to the Judiciary from the Constitutional as the incumbent President (i.e., 44 days) within which to scrutinize and study the
ban on midnight appointments is based on an interpretation beyond the plain and qualifications of the next Chief Justice. Thus, the JBC has more than enough
unequivocal language of the Constitution. opportunity to examine the nominees without haste and political
2. The intent of the ban on midnight appointments is to cover appointments in both uncertainty.1avvphi1
the Executive and Judicial Departments. The application of the principle of verba 5. When the constitutional ban is in place, the 90-day period under Section 4(1),
Article VIII is suspended. textual reading and the records of the Constitutional Commission support the view
6. There is no basis to direct the JBC to submit the list of nominees on or before that the ban on midnight appointments extends to judicial appointments.
May 17, 2010. The directive to the JBC sanctions a culpable violation of the 2. Supervision of the JBC by the Court involves oversight. The subordinate subject
Constitution and constitutes an election offense. to oversight must first act not in accord with prescribed rules before the act can be
7. There is no pressing necessity for the appointment of a Chief Justice, because redone to conform to the prescribed rules.
the Court sits en banc, even when it acts as the sole judge of all contests relative 3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the
to the election, returns and qualifications of the President and Vice-President. petition did not present a justiciable controversy.
Fourteen other Members of the Court can validly comprise the Presidential Pimentel
Electoral Tribunal. 1. Any constitutional interpretative changes must be reasonable, rational, and
WTLOP conformable to the general intent of the Constitution as a limitation to the powers
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of of Government and as a bastion for the protection of the rights of the people. Thus,
nominees for Chief Justice to the President on or before May 17, 2010, and to in harmonizing seemingly conflicting provisions of the Constitution, the
continue its proceedings for the nomination of the candidates, because it granted a interpretation should always be one that protects the citizenry from an ever
relief not prayed for; imposed on the JBC a deadline not provided by law or the expanding grant of authority to its representatives.
Constitution; exercised control instead of mere supervision over the JBC; and 2. The decision expands the constitutional powers of the President in a manner
lacked sufficient votes to reverse Valenzuela. totally repugnant to republican constitutional democracy, and is tantamount to a
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of judicial amendment of the Constitution without proper authority.
statutory construction to the effect that the literal meaning of the law must be Comments
applied when it is clear and unambiguous; and that we should not distinguish The Office of the Solicitor General (OSG) and the JBC separately represent in their
where the law does not distinguish. respective comments, thus:
3. There is no urgency to appoint the next Chief Justice, considering that the OSG
Judiciary Act of 1948 already provides that the power and duties of the office 1. The JBC may be compelled to submit to the President a short list of its
devolve on the most senior Associate Justice in case of a vacancy in the office of nominees for the position of Chief Justice.
the Chief Justice. 2. The incumbent President has the power to appoint the next Chief Justice.
Ubano 3. Section 15, Article VII does not apply to the Judiciary.
1. The language of Section 15, Article VII, being clear and unequivocal, needs no 4. The principles of constitutional construction favor the exemption of the Judiciary
interpretation from the ban on midnight appointments.1awph!1
2. The Constitution must be construed in its entirety, not by resort to the 5. The Court has the duty to consider and resolve all issues raised by the parties
organization and arrangement of its provisions. as well as other related matters.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII JBC
and the pertinent records of the Constitutional Commission are clear and 1. The consolidated petitions should have been dismissed for prematurity, because
unambiguous. the JBC has not yet decided at the time the petitions were filed whether the
4. The Court has erred in ordering the JBC to submit the list of nominees to the incumbent President has the power to appoint the new Chief Justice, and because
President by May 17, 2010 at the latest, because no specific law requires the JBC the JBC, having yet to interview the candidates, has not submitted a short list to
to submit the list of nominees even before the vacancy has occurred. the President.
Boiser 2. The statement in the decision that there is a doubt on whether a JBC short list is
1. Under Section 15, Article VII, the only exemption from the ban on midnight necessary for the President to appoint a Chief Justice should be struck down as
appointments is the temporary appointment to an executive position. The limitation bereft of constitutional and legal basis. The statement undermines the
is in keeping with the clear intent of the framers of the Constitution to place a independence of the JBC.
restriction on the power of the outgoing Chief Executive to make appointments. 3. The JBC will abide by the final decision of the Court, but in accord with its
2. To exempt the appointment of the next Chief Justice from the ban on midnight constitutional mandate and its implementing rules and regulations.
appointments makes the appointee beholden to the outgoing Chief Executive, and For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his
compromises the independence of the Chief Justice by having the outgoing comment even if the OSG and the JBC were the only ones the Court has required
President be continually influential. to do so. He states that the motions for reconsideration were directed at the
3. The Court’s reversal of Valenzuela without stating the sufficient reason violates administrative matter he initiated and which the Court resolved. His comment
the principle of stare decisis. asserts:
Bello, et al. 1. The grounds of the motions for reconsideration were already resolved by the
1. Section 15, Article VII does not distinguish as to the type of appointments an decision and the separate opinion.
outgoing President is prohibited from making within the prescribed period. Plain 2. The administrative matter he brought invoked the Court’s power of supervision
over the JBC as provided by Section 8(1), Article VIII of the Constitution, as such reasoning and justification to be applicable to the case. The application of the
distinguished from the Court’s adjudicatory power under Section 1, Article VIII. In precedent is for the sake of convenience and stability.
the former, the requisites for judicial review are not required, which was why For the intervenors to insist that Valenzuela ought not to be disobeyed, or
Valenzuela was docketed as an administrative matter. Considering that the JBC abandoned, or reversed, and that its wisdom should guide, if not control, the Court
itself has yet to take a position on when to submit the short list to the proper in this case is, therefore, devoid of rationality and foundation. They seem to
appointing authority, it has effectively solicited the exercise by the Court of its conveniently forget that the Constitution itself recognizes the innate authority of the
power of supervision over the JBC. Court en banc to modify or reverse a doctrine or principle of law laid down in any
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to decision rendered en banc or in division.7
amend the Constitution. Second: Some intervenors are grossly misleading the public by their insistence
4. The portions of the deliberations of the Constitutional Commission quoted in the that the Constitutional Commission extended to the Judiciary the ban on
dissent of Justice Carpio Morales, as well as in some of the motions for presidential appointments during the period stated in Section 15, Article VII.
reconsideration do not refer to either Section 15, Article VII or Section 4(1), Article The deliberations that the dissent of Justice Carpio Morales quoted from the
VIII, but to Section 13, Article VII (on nepotism). records of the Constitutional Commission did not concern either Section 15, Article
Ruling VII or Section 4(1), Article VIII, but only Section 13, Article VII, a provision on
We deny the motions for reconsideration for lack of merit, for all the matters being nepotism. The records of the Constitutional Commission show that Commissioner
thereby raised and argued, not being new, have all been resolved by the decision Hilario G. Davide, Jr. had proposed to include judges and justices related to the
of March 17, 2010. President within the fourth civil degree of consanguinity or affinity among the
Nonetheless, the Court opts to dwell on some matters only for the purpose of persons whom the President might not appoint during his or her tenure. In the end,
clarification and emphasis. however, Commissioner Davide, Jr. withdrew the proposal to include the Judiciary
First: Most of the movants contend that the principle of stare decisis is controlling, in Section 13, Article VII "(t)o avoid any further complication,"8 such that the final
and accordingly insist that the Court has erred in disobeying or abandoning version of the second paragraph of Section 13, Article VII even completely omits
Valenzuela.1 any reference to the Judiciary, to wit:
The contention has no basis. Section 13. xxx
Stare decisis derives its name from the Latin maxim stare decisis et non quieta The spouse and relatives by consanguinity or affinity within the fourth civil degree
movere, i.e., to adhere to precedent and not to unsettle things that are settled. It of the President shall not during his tenure be appointed as Members of the
simply means that a principle underlying the decision in one case is deemed of Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
imperative authority, controlling the decisions of like cases in the same court and in Undersecretaries, chairmen or heads of bureaus or offices, including government-
lower courts within the same jurisdiction, unless and until the decision in question owned or controlled corporations and their subsidiaries.
is reversed or overruled by a court of competent authority. The decisions relied Last: The movants take the majority to task for holding that Section 15, Article VII
upon as precedents are commonly those of appellate courts, because the does not apply to appointments in the Judiciary. They aver that the Court either
decisions of the trial courts may be appealed to higher courts and for that reason ignored or refused to apply many principles of statutory construction.
are probably not the best evidence of the rules of law laid down. 2 The movants gravely err in their posture, and are themselves apparently
Judicial decisions assume the same authority as a statute itself and, until contravening their avowed reliance on the principles of statutory construction.
authoritatively abandoned, necessarily become, to the extent that they are For one, the movants, disregarding the absence from Section 15, Article VII of the
applicable, the criteria that must control the actuations, not only of those called express extension of the ban on appointments to the Judiciary, insist that the ban
upon to abide by them, but also of those duty-bound to enforce obedience to applied to the Judiciary under the principle of verba legis. That is self-contradiction
them.3 In a hierarchical judicial system like ours, the decisions of the higher courts at its worst.
bind the lower courts, but the courts of co-ordinate authority do not bind each Another instance is the movants’ unhesitating willingness to read into Section 4(1)
other. The one highest court does not bind itself, being invested with the innate and Section 9, both of Article VIII, the express applicability of the ban under
authority to rule according to its best lights.4 Section 15, Article VII during the period provided therein, despite the silence of
The Court, as the highest court of the land, may be guided but is not controlled by said provisions thereon. Yet, construction cannot supply the omission, for doing so
precedent. Thus, the Court, especially with a new membership, is not obliged to would generally constitute an encroachment upon the field of the Constitutional
follow blindly a particular decision that it determines, after re-examination, to call Commission. Rather, Section 4(1) and Section 9 should be left as they are, given
for a rectification.5 The adherence to precedents is strict and rigid in a common- that their meaning is clear and explicit, and no words can be interpolated in them.9
law setting like the United Kingdom, where judges make law as binding as an Act Interpolation of words is unnecessary, because the law is more than likely to fail to
of Parliament.6 But ours is not a common-law system; hence, judicial precedents express the legislative intent with the interpolation. In other words, the addition of
are not always strictly and rigidly followed. A judicial pronouncement in an earlier new words may alter the thought intended to be conveyed. And, even where the
decision may be followed as a precedent in a subsequent case only when its meaning of the law is clear and sensible, either with or without the omitted word or
reasoning and justification are relevant, and the court in the latter case accepts words, interpolation is improper, because the primary source of the legislative
intent is in the language of the law itself.10 1999).4 The children were not expressly recognized by respondent as his own in
Thus, the decision of March 17, 2010 has fittingly observed: the Record of Births of the children in the Civil Registry. The parties’ relationship,
Had the framers intended to extend the prohibition contained in Section 15, Article however, eventually turned sour, and Grande left for the United States with her two
VII to the appointment of Members of the Supreme Court, they could have children in May 2007. This prompted respondent Antonio to file a Petition for
explicitly done so. They could not have ignored the meticulous ordering of the Judicial Approval of Recognition with Prayer to take Parental Authority, Parental
provisions. They would have easily and surely written the prohibition made explicit Physical Custody, Correction/Change of Surname of Minors and for the Issuance
in Section 15, Article VII as being equally applicable to the appointment of of Writ of Preliminary Injunction before the Regional Trial Court, Branch 8 of Aparri,
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Cagayan (RTC), appending a notarized Deed of Voluntary Recognition of Paternity
Article VIII. That such specification was not done only reveals that the prohibition of the children.5
against the President or Acting President making appointments within two months On September 28, 2010, the RTC rendered a Decision in favor of herein
before the next presidential elections and up to the end of the President’s or Acting respondent Antonio, ruling that "[t]he evidence at hand is overwhelming that the
President’s term does not refer to the Members of the Supreme Court. best interest of the children can be promoted if they are under the sole parental
We cannot permit the meaning of the Constitution to be stretched to any authority and physical custody of [respondent Antonio]."6 Thus, the court a quo
unintended point in order to suit the purposes of any quarter. decreed the following:
Final Word WHEREFORE, foregoing premises considered, the Court hereby grants [Antonio’s]
It has been insinuated as part of the polemics attendant to the controversy we are prayer for recognition and the same is hereby judicially approved. x x x
resolving that because all the Members of the present Court were appointed by the Consequently, the Court forthwith issues the following Order granting the other
incumbent President, a majority of them are now granting to her the authority to reliefs sought in the Petition, to wit:
appoint the successor of the retiring Chief Justice. a. Ordering the Office of the City Registrar of the City of Makati to cause the entry
The insinuation is misguided and utterly unfair. of the name of [Antonio] as the father of the aforementioned minors in their
The Members of the Court vote on the sole basis of their conscience and the respective Certificate of Live Birth and causing the correction/change and/or
merits of the issues. Any claim to the contrary proceeds from malice and annotation of the surnames of said minors in their Certificate of Live Birth from
condescension. Neither the outgoing President nor the present Members of the Grande to Antonio;
Court had arranged the current situation to happen and to evolve as it has. None b. Granting [Antonio] the right to jointly exercise Parental Authority with [Grande]
of the Members of the Court could have prevented the Members composing the over the persons of their minor children, Andre Lewis Grande and Jerard Patrick
Court when she assumed the Presidency about a decade ago from retiring during Grande;
her prolonged term and tenure, for their retirements were mandatory. Yet, she is c. Granting [Antonio] primary right and immediate custody over the parties’ minor
now left with an imperative duty under the Constitution to fill up the vacancies children Andre Lewis Grandre and Jerard Patrick Grande who shall stay with
created by such inexorable retirements within 90 days from their occurrence. Her [Antonio’s] residence in the Philippines from Monday until Friday evening and to
official duty she must comply with. So must we ours who are tasked by the [Grande’s] custody from Saturday to Sunday evening;
Constitution to settle the controversy. d. Ordering [Grande] to immediately surrender the persons and custody of minors
ACCORDINGLY, the motions for reconsideration are denied with finality. Andre Lewis Grande and Jerard Patrick Grande unto [Antonio] for the days
covered by the Order;
e. Ordering parties to cease and desist from bringing the aforenamed minors
outside of the country, without the written consent of the other and permission from
G.R. No. 206248 February 18, 2014 the court.
GRACE M. GRANDE, Petitioner, f. Ordering parties to give and share the support of the minor children Andre Lewis
vs. Grande and Jerard Patrick Grande in the amount of ₱30,000 per month at the rate
PATRICIO T. ANTONIO, Respondent. of 70% for [Antonio] and 30% for [Grande].7 (Emphasis supplied.)
DECISION Aggrieved, petitioner Grande moved for reconsideration. However, her motion was
VELASCO, JR., J.: denied by the trial court in its Resolution dated November 22, 20108 for being pro
Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the forma and for lack of merit.
July 24, 2012 Decision1 and March 5, 2013 Resolution2 of the Court of Appeals Petitioner Grande then filed an appeal with the CA attributing grave error on the
(CA) in CA-G.R. CV No. 96406. part of the RTC for allegedly ruling contrary to the law and jurisprudence
As culled from the records, the facts of this case are: respecting the grant of sole custody to the mother over her illegitimate children.9 In
Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a resolving the appeal, the appellate court modified in part the Decision of the RTC.
period of time lived together as husband and wife, although Antonio was at that The dispositive portion of the CA Decision reads:
time already married to someone else.3 Out of this illicit relationship, two sons WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision
were born: Andre Lewis (on February 8, 1998) and Jerard Patrick (on October 13, of the Regional Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-
4492 is MODIFIED in part and shall hereinafter read as follows: parental authority of their mother, and shall be entitled to support in conformity with
a. The Offices of the Civil Registrar General and the City Civil Registrar of Makati this Code. However, illegitimate children may use the surname of their father if
City are DIRECTED to enter the surname Antonio as the surname of Jerard Patrick their filiation has been expressly recognized by their father through the record of
and Andre Lewis, in their respective certificates of live birth, and record the same birth appearing in the civil register, or when an admission in a public document or
in the Register of Births; private handwritten instrument is made by the father. Provided, the father has the
b. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre right to institute an action before the regular courts to prove non-filiation during his
Lewis to the custody of their mother herein appellant, Grace Grande who by virtue lifetime. The legitime of each illegitimate child shall consist of one-half of the
hereof is hereby awarded the full or sole custody of these minor children; legitime of a legitimate child. (Emphasis supplied.)
c. [Antonio] shall have visitorial rights at least twice a week, and may only take the From the foregoing provisions, it is clear that the general rule is that an illegitimate
children out upon the written consent of [Grande]; and child shall use the surname of his or her mother. The exception provided by RA
d. The parties are DIRECTED to give and share in support of the minor children 9255 is, in case his or her filiation is expressly recognized by the father through the
Jerard Patrick and Andre Lewis in the amount of ₱30,000.00 per month at the rate record of birth appearing in the civil register or when an admission in a public
of 70% for [Antonio] and 30% for [Grande]. (Emphasis supplied.) document or private handwritten instrument is made by the father. In such a
In ruling thus, the appellate court ratiocinated that notwithstanding the father’s situation, the illegitimate child may use the surname of the father.
recognition of his children, the mother cannot be deprived of her sole parental In the case at bar, respondent filed a petition for judicial approval of recognition of
custody over them absent the most compelling of reasons.10 Since respondent the filiation of the two children with the prayer for the correction or change of the
Antonio failed to prove that petitioner Grande committed any act that adversely surname of the minors from Grande to Antonio when a public document
affected the welfare of the children or rendered her unsuitable to raise the minors, acknowledged before a notary public under Sec. 19, Rule 132 of the Rules of
she cannot be deprived of her sole parental custody over their children. Court15 is enough to establish the paternity of his children. But he wanted more: a
The appellate court, however, maintained that the legal consequence of the judicial conferment of parental authority, parental custody, and an official
recognition made by respondent Antonio that he is the father of the minors, taken declaration of his children’s surname as Antonio.
in conjunction with the universally protected "best-interest-of-the-child" clause, Parental authority over minor children is lodged by Art. 176 on the mother; hence,
compels the use by the children of the surname "ANTONIO."11 respondent’s prayer has no legal mooring. Since parental authority is given to the
As to the issue of support, the CA held that the grant is legally in order considering mother, then custody over the minor children also goes to the mother, unless she
that not only did Antonio express his willingness to give support, it is also a is shown to be unfit.
consequence of his acknowledging the paternity of the minor children.12 Lastly, Now comes the matter of the change of surname of the illegitimate children. Is
the CA ruled that there is no reason to deprive respondent Antonio of his visitorial there a legal basis for the court a quo to order the change of the surname to that of
right especially in view of the constitutionally inherent and natural right of parents respondent?
over their children.13 Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and
Not satisfied with the CA’s Decision, petitioner Grande interposed a partial motion unequivocal provision of Art. 176 of the Family Code, as amended by RA 9255.
for reconsideration, particularly assailing the order of the CA insofar as it decreed Art. 176 gives illegitimate children the right to decide if they want to use the
the change of the minors’ surname to "Antonio." When her motion was denied, surname of their father or not. It is not the father (herein respondent) or the mother
petitioner came to this Court via the present petition. In it, she posits that Article (herein petitioner) who is granted by law the right to dictate the surname of their
176 of the Family Code––as amended by Republic Act No. (RA) 9255, couched as illegitimate children.
it is in permissive language––may not be invoked by a father to compel the use by Nothing is more settled than that when the law is clear and free from ambiguity, it
his illegitimate children of his surname without the consent of their mother. must be taken to mean what it says and it must be given its literal meaning free
We find the present petition impressed with merit. from any interpretation.16 Respondent’s position that the court can order the
The sole issue at hand is the right of a father to compel the use of his surname by minors to use his surname, therefore, has no legal basis.
his illegitimate children upon his recognition of their filiation. Central to the core On its face, Art. 176, as amended, is free from ambiguity. And where there is no
issue is the application of Art. 176 of the Family Code, originally phrased as ambiguity, one must abide by its words. The use of the word "may" in the provision
follows: readily shows that an acknowledged illegitimate child is under no compulsion to
Illegitimate children shall use the surname and shall be under the parental use the surname of his illegitimate father. The word "may" is permissive and
authority of their mother, and shall be entitled to support in conformity with this operates to confer discretion17 upon the illegitimate children.
Code. The legitime of each illegitimate child shall consist of one-half of the legitime It is best to emphasize once again that the yardstick by which policies affecting
of a legitimate child. Except for this modification, all other provisions in the Civil children are to be measured is their best interest. On the matter of children’s
Code governing successional rights shall remain in force. surnames, this Court has, time and again, rebuffed the idea that the use of the
This provision was later amended on March 19, 2004 by RA 925514 which now father’s surname serves the best interest of the minor child. In Alfon v. Republic,18
reads: for instance, this Court allowed even a legitimate child to continue using the
Art. 176. – Illegitimate children shall use the surname and shall be under the surname of her mother rather than that of her legitimate father as it serves her best
interest and there is no legal obstacle to prevent her from using the surname of her 8.1 For Births Not Yet Registered
mother to which she is entitled. In fact, in Calderon v. Republic,19 this Court, 8.1.1 The surname of the father shall be entered as the last name of the child in
upholding the best interest of the child concerned, even allowed the use of a the Certificate of Live Birth. The Certificate of Live Birth shall be recorded in the
surname different from the surnames of the child’s father or mother. Indeed, the Register of Births.
rule regarding the use of a child’s surname is second only to the rule requiring that xxxx
the child be placed in the best possible situation considering his circumstances. 8.2 For Births Previously Registered under the Surname of the Mother
In Republic of the Philippines v. Capote,20 We gave due deference to the choice of 8.2.1 If admission of paternity was made either at the back of the Certificate of Live
an illegitimate minor to use the surname of his mother as it would best serve his Birth or in a separate public document or in a private handwritten document, the
interest, thus: public document or AUSF shall be recorded in the Register of Live Birth and the
The foregoing discussion establishes the significant connection of a person’s name Register of Births as follows:
to his identity, his status in relation to his parents and his successional rights as a "The surname of the child is hereby changed from (original surname) to (new
legitimate or illegitimate child. For sure, these matters should not be taken lightly surname) pursuant to RA 9255."
as to deprive those who may, in any way, be affected by the right to present The original surname of the child appearing in the Certificate of Live Birth and
evidence in favor of or against such change. Register of Births shall not be changed or deleted.
The law and facts obtaining here favor Giovanni’s petition. Giovanni availed of the 8.2.2 If filiation was not expressly recognized at the time of registration, the public
proper remedy, a petition for change of name under Rule 103 of the Rules of document or AUSF shall be recorded in the Register of Legal Instruments. Proper
Court, and complied with all the procedural requirements. After hearing, the trial annotation shall be made in the Certificate of Live Birth and the Register of Births
court found (and the appellate court affirmed) that the evidence presented during as follows:
the hearing of Giovanni’s petition sufficiently established that, under Art. 176 of the "Acknowledged by (name of father) on (date). The surname of the child is hereby
Civil Code, Giovanni is entitled to change his name as he was never recognized by changed from (original surname) on (date) pursuant to RA 9255." (Emphasis
his father while his mother has always recognized him as her child. A change of supplied.)
name will erase the impression that he was ever recognized by his father. It is also Nonetheless, the hornbook rule is that an administrative issuance cannot amend a
to his best interest as it will facilitate his mother’s intended petition to have him join legislative act. In MCC Industrial Sales Corp. v. Ssangyong Corporation,22 We
her in the United States. This Court will not stand in the way of the reunification of held:
mother and son. (Emphasis supplied.) After all, the power of administrative officials to promulgate rules in the
An argument, however, may be advanced advocating the mandatory use of the implementation of a statute is necessarily limited to what is found in the legislative
father’s surname upon his recognition of his illegitimate children, citing the enactment itself. The implementing rules and regulations of a law cannot extend
Implementing Rules and Regulations (IRR) of RA 9255,21 which states: the law or expand its coverage, as the power to amend or repeal a statute is
Rule 7. Requirements for the Child to Use the Surname of the Father vested in the Legislature. Thus, if a discrepancy occurs between the basic law and
7.1 For Births Not Yet Registered an implementing rule or regulation, it is the former that prevails, because the law
7.1.1 The illegitimate child shall use the surname of the father if a public document cannot be broadened by a mere administrative issuance — an administrative
is executed by the father, either at the back of the Certificate of Live Birth or in a agency certainly cannot amend an act of Congress.
separate document. Thus, We can disregard contemporaneous construction where there is no
7.1.2 If admission of paternity is made through a private instrument, the child shall ambiguity in law and/or the construction is clearly erroneous.23 What is more, this
use the surname of the father, provided the registration is supported by the Court has the constitutional prerogative and authority to strike down and declare
following documents: as void the rules of procedure of special courts and quasi- judicial bodies24 when
xxxx found contrary to statutes and/or the Constitution.25 Section 5(5), Art. VIII of the
7.2. For Births Previously Registered under the Surname of the Mother Constitution provides:
7.2.1 If filiation has been expressly recognized by the father, the child shall use the Sec. 5. The Supreme Court shall have the following powers:
surname of the father upon the submission of the accomplished AUSF [Affidavit of xxxx
Use of the Surname of the Father]. (5) Promulgate rules concerning the protection and enforcement of constitutional
7.2.2 If filiation has not been expressly recognized by the father, the child shall use rights, pleading, practice and procedure in all courts, the admission to the practice
the surname of the father upon submission of a public document or a private of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules
handwritten instrument supported by the documents listed in Rule 7.1.2. shall provide a simplified and inexpensive procedure for the speedy disposition of
7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she cases, shall be uniform for all courts of the same grade, and shall not diminish,
has reached the age of majority. The consent may be contained in a separate increase, or modify substantive rights. Rules of procedure of special courts and
instrument duly notarized. quasi-judicial bodies shall remain effective unless disapproved by the Supreme
xxxx Court. (Emphasis supplied.)
Rule 8. Effects of Recognition Thus, We exercise this power in voiding the above-quoted provisions of the IRR of
RA 9255 insofar as it provides the mandatory use by illegitimate children of their
father’s surname upon the latter’s recognition of his paternity.
To conclude, the use of the word "shall" in the IRR of RA 9255 is of no moment.
The clear, unambiguous, and unequivocal use of "may" in Art. 176 rendering the
use of an illegitimate father’s surname discretionary controls, and illegitimate
children are given the choice on the surnames by which they will be known.
At this juncture, We take note of the letters submitted by the children, now aged
thirteen (13) and fifteen (15) years old, to this Court declaring their opposition to
have their names changed to "Antonio."26 However, since these letters were not
offered before and evaluated by the trial court, they do not provide any evidentiary
weight to sway this Court to rule for or against petitioner.27 A proper inquiry into,
and evaluation of the evidence of, the children's choice of surname by the trial
court is necessary.
WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24, 2012
Decision of the Court of Appeals in CA-G.R. CV No. 96406 is MODIFIED, the
dispositive portion of which shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly. the appealed Decision
of the Regional Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-
4492 is MODIFIED in part and shall hereinafter read as follows:
a. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre
Lewis to the custody of their mother herein appellant, Grace Grande who by virtue
hereof is hereby awarded the full or sole custody of these minor children;
b. [Antonio] shall have visitation rights28 at least twice a week, and may only take
the children out upon the written consent of [Grande]:
c. The parties are DIRECTED to give and share in support of the minor children
Jerard Patrick and Andre Lewis in the amount of ₱30,000.00 per month at the rate
of 70% for [Antonio] and 30% for [Grande]; and
d. The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri,
Cagayan for the sole purpose of determining the surname to be chosen by the
children Jerard Patrick and Andre Lewis.
Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative Order
No. 1, Series of 2004 are DISAPPROVED and hereby declared NULL and VOID.
SO ORDERED.