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VOL. 472, OCTOBER 13, 2005

587

Pimentel, Jr. vs. Ermita


*

G.R. No. 164978. October 13, 2005.

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA,


JUAN PONCE ENRILE, LUISA P. EJERCITOESTRADA, JINGGOY E. ESTRADA, PANFILO M.
LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL,
and SERGIO R. OSMEA III, petitioners, vs. EXEC.
SECRETARY EDUARDO R. ERMITA, FLORENCIO B.
ABAD, AVELINO J. CRUZ, JR., MICHAEL T.
DEFENSOR, JOSEPH H. DURANO, RAUL M.
GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA,
and ARTHUR C. YAP, respondents.
Remedial Law; Civil Procedure; Prohibition; As a rule, the writ
of prohibition will not lie to enjoin acts already done.As a rule,
the writ of prohibition will not lie to enjoin acts already done.
However, as an exception to the rule on mootness, courts will decide
a question otherwise moot if it is capable of repetition yet evading
review. In the present case, the mootness of the petition does not
bar its resolution. The question of the constitutionality of the
Presidents appointment of department secretaries in an acting
capacity while Congress is in session will arise in every such
appointment.
Constitutional Law; Appointments; Executive Department;
Congress; The power to appoint is essentially executive in nature,
and the legislature may not interfere with the exercise of this
executive power except in those instances when the Constitution
expressly allows it to interfere.The power to appoint is essentially
executive in nature, and the legislature may not interfere with the
exercise of this executive power except in those instances when the
Constitution expressly allows it to interfere. Limitations on the
executive power to appoint are construed strictly against the
legislature. The scope of the legislatures interference in the
executives power to appoint is limited to the power to prescribe the
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qualifications to an appointive office. Congress cannot appoint a


person to an office in the guise of prescribing qualifications to that
office. Neither may Congress impose on the President the duty to
appoint any particular person to an office.
_______________
*

EN BANC.

588

588

SUPREME COURT REPORTS ANNOTATED


Pimentel, Jr. vs. Ermita

Same; Same; Commission on Appointments; Even if the


Commission on Appointments is composed of members of Congress,
the exercise of its powers is executive and not legislative.Even if
the Commission on Appointments is composed of members of
Congress, the exercise of its powers is executive and not legislative.
The Commission on Appointments does not legislate when it
exercises its power to give or withhold consent to presidential
appointments. Thus: x x x The Commission on Appointments is a
creature of the Constitution. Although its membership is confined to
members of Congress, said Commission is independent of Congress.
The powers of the Commission do not come from Congress, but
emanate directly from the Constitution. Hence, it is not an agent of
Congress. In fact, the functions of the Commissioner are purely
executive in nature. x x x
Same; Same; Same; Considering the independence of the
Commission on Appointments from Congress, it is error for
petitioners to claim standing in the present case as members of
Congress.Considering the independence of the Commission on
Appointments from Congress, it is error for petitioners to claim
standing in the present case as members of Congress. President
Arroyos issuance of acting appointments while Congress is in
session impairs no power of Congress. Among the petitioners, only
the following are members of the Commission on Appointments of
the 13th Congress: Senator Enrile as Minority Floor Leader,
Senator Lacson as Assistant Minority Floor Leader, and Senator
Angara, Senator Ejercito-Estrada, and Senator Osmea as
members. Thus, on the impairment of the prerogatives of members
of the Commission on Appointments, only Senators Enrile, Lacson,
Angara, Ejercito-Estrada, and Osmea have standing in the
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present petition. This is in contrast to Senators Pimentel, Estrada,


Lim, and Madrigal, who, though vigilant in protecting their
perceived prerogatives as members of Congress, possess no standing
in the present petition.
Same; Same; Same; Congress, through a law, cannot impose on
the President the obligation to appoint automatically the
undersecretary as her temporary alter ego.The essence of an
appointment in an acting capacity is its temporary nature. It is a
stop-gap measure intended to fill an office for a limited time until
the appointment of a permanent occupant to the office. In case of
vacancy in an office occupied by an alter ego of the President, such
as the office of a department secretary, the President must
necessarily appoint an alter
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Pimentel, Jr. vs. Ermita


ego of her choice as acting secretary before the permanent appointee
of her choice could assume office. Congress, through a law, cannot
impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, whether
temporary or permanent, holds a position of great trust and
confidence. Congress, in the guise of prescribing qualifications to an
office, cannot impose on the President who her alter ego should be.
Same; Same; Same; Statutes; Section 17, Chapter 5, Title I,
Book III of EO 292 states that [t]he President may temporarily
designate an officer already in the government service or any other
competent person to perform the functions of an office in the
executive branch.The law expressly allows the President to make
such acting appointment. Section 17, Chapter 5, Title I, Book III of
EO 292 states that [t]he President may temporarily designate an
officer already in the government service or any other competent
person to perform the functions of an office in the executive
branch. Thus, the President may even appoint in an acting
capacity a person not yet in the government service, as long as the
President deems that person competent.
Same; Same; Same; Ad interim appointments are extended only
during recess of Congress and are submitted to the Commission on
Appointments for confirmation or rejection, whereas appointments
in an acting capacity may be extended any time there is a vacancy
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and are not submitted to the Commission on Appointments.In


distinguishing ad interim appointments from appointments in an
acting capacity, a noted textbook writer on constitutional law has
observed: Ad interim appointments must be distinguished from
appointments in an acting capacity. Both of them are effective upon
acceptance. But ad interim appointments are extended only during
a recess of Congress, whereas acting appointments may be extended
any time there is a vacancy. Moreover ad interim appointments are
submitted to the Commission on Appointments for confirmation or
rejection; acting appointments are not submitted to the Commission
on Appointments. Acting appointments are a way of temporarily
filling important offices but, if abused, they can also be a way of
circumventing the need for confirmation by the Commission on
Appointments.
590

590

SUPREME COURT REPORTS ANNOTATED


Pimentel, Jr. vs. Ermita

SPECIAL CIVIL ACTION in the Supreme Court.


Certiorari and Prohibition.
The facts are stated in the opinion of the Court.
Luis Ma. Gil L. Gana for petitioners.
The Solicitor General for respondents.
CARPIO, J.:

The Case
1

This is a petition for certiorari and prohibition with a


prayer for the issuance of a writ of preliminary injunction to
declare unconstitutional the appointments issued by
President Gloria Macapagal-Arroyo (President Arroyo)
through Executive Secretary Eduardo R. Ermita
(Secretary Ermita) to Florencio B. Abad, Avelino J. Cruz,
Jr., Michael T. Defensor, Joseph H. Durano, Raul M.
Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C.
Yap (respondents) as acting secretaries of their respective
departments. The petition also seeks to prohibit respondents
from performing the duties of department secretaries.

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Antecedent Facts
The Senate and the House of Representatives (Congress)
commenced their regular session on 26 July 2004. The
Commission on Appointments, composed of Senators and
Representatives, was constituted on 25 August 2004.
2
Meanwhile, President Arroyo issued appointments to
respondents as acting secretaries of their respective
departments.
_______________
1

Under Rule 65 of the Rules of Court.

Rollo, pp. 21-28.


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591

Pimentel, Jr. vs. Ermita


Appointee

Department

Date of
Appointment

Arthur C. Yap

Agriculture

15 August 2004

Alberto G. Romulo

Foreign Affairs

23 August 2004

Raul M. Gonzalez

Justice

23 August 2004

Florencio B. Abad

Education

23 August 2004

Avelino J. Cruz,
Jr.

National Defense

23 August 2004

Rene C. Villa

Agrarian Reform

23 August 2004

Joseph H. Durano

Tourism

23 August 2004

Michael T.
Defensor

Environment and
Natural
Resources

23 August 2004

The appointment papers are uniformly worded as follows:


Sir:
Pursuant to the provisions of existing laws, you are
hereby
appointed
ACTING
SECRETARY,
DEPARTMENT OF (appropriate department) vice
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(name of person replaced).


By virtue hereof, you may qualify and enter upon
the performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission
with copies of your Oath of Office.
(signed)
Gloria Arroyo
Respondents took their oath of office and assumed duties as
acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr.
(Senator Pimentel), Edgardo J. Angara (Senator
Angara), Juan Ponce Enrile (Senator Enrile), Luisa P.
Ejercito-Estrada (Senator Ejercito-Estrada), Jinggoy E.
Estrada (Senator Estrada), Panfilo M. Lacson (Senator
Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S.
Madrigal (Senator Madrigal), and Sergio R. Osmea, III
(Senator Osmea) (petitioners) filed the present petition
as Senators of the Republic of the Philippines.
592

592

SUPREME COURT REPORTS ANNOTATED


Pimentel, Jr. vs. Ermita

Congress adjourned on 22 September 2004. On 23


September 2004,
President Arroyo issued ad interim
3
appointments to respondents as secretaries of the
departments to which they were previously appointed in an
acting capacity. The appointment papers are uniformly
worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are
hereby appointed SECRETARY [AD INTERIM],
DEPARTMENT OF (appropriate department).
By virtue hereof, you may qualify and enter upon
the performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission
with copies of your oath of office.
(signed)
Gloria Arroyo

Issue
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The petition questions the constitutionality of President


Arroyos appointment of respondents as acting secretaries
without the consent of the Commission on Appointments
while Congress is in session.
The Courts Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot
because President Arroyo had extended to respondents ad
interim appointments on 23 September 2004 immediately
after the recess of Congress.
_______________
3

Rollo, pp. 45-60.


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Pimentel, Jr. vs. Ermita


As a rule, the4 writ of prohibition will not lie to enjoin acts
already done. However, as an exception to the rule on
mootness, courts will decide a question otherwise
moot if it is
5
capable of repetition yet evading review.
In the present case, the mootness of the petition does not
bar its resolution. The question of the constitutionality of
the Presidents appointment of department secretaries in an
acting capacity while Congress is in session will arise in
every such appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and
the legislature may not interfere with the exercise of this
executive power except in those instances
when the
6
Constitution expressly allows it to interfere. Limitations on
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the executive power


to appoint are construed strictly against
7
the legis-lature. The scope of the legislatures interference
in the executives power to appoint is limited to the power to
prescribe the qualifications to an appointive office. Congress
cannot appoint a person to an office in the guise of
prescribing qualifications to that office. Neither may
Congress impose on the
_______________
4

Tolentino v. Commission on Elections, G.R. No. 148334, 21 January

2004, 420 SCRA 438 citing Gil v. Benipayo, G.R. No. 148179, 26 June
2001 (minute resolution).
5

Tolentino v. Commission on Elections, G.R. No. 148334, 21 January

2004, 420 SCRA 438 citing Chief Supt. Acop v. Secretary Guingona, Jr.,
433 Phil. 62; 383 SCRA 577 (2002); Viola v. Hon. Alunan III, 343 Phil.
184; 277 SCRA 409 (1997); Alunan III v. Mira-sol, 342 Phil. 467; 276
SCRA 501 (1997).
6

See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF

THE REPUBLIC OF THE PHILIPPINES:ACOMMENTARY 768 (1996).


7

See Sarmiento III v. Mison, No. L-79974, 17 December 1987, 156

SCRA 549.
594

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SUPREME COURT REPORTS ANNOTATED


Pimentel, Jr. vs. Ermita

President
the duty to appoint any particular person to an
8
office.
However, even if the Commission on Appointments is
composed of members of Congress, the exercise of its powers
is executive and not legislative. The Commission on
Appointments does not legislate when it exercises its power
to give or withhold consent to presidential appointments.
Thus:
x x x The Commission on Appointments is a creature of the
Constitution. Although its membership is confined to members of
Congress, said Commission is independent of Congress. The powers
of the Commission do not come from Congress, but emanate directly
from the Constitution. Hence, it is not an agent of Congress. In fact,
the9 functions of the Commissioner are purely executive in nature. x
xx

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On Petitioners Standing
The Solicitor General states that the present petition is a
quo warranto proceeding because, with the exception of
Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of
department secretaries. The Solicitor General further states
that petitioners may not claim standing as Senators because
no power of the Commission on Appointments has been
infringed upon or violated by the President. x x x If at all,
the Commission on Appointments as a body (rather than
individual members
of the Congress) may possess standing
10
in this case.
Petitioners, on the other hand, state that the Court can
exercise its certiorari
jurisdiction over unconstitutional acts
11
of the President. Petitioners further contend that they
possess
_______________
See Manalang v. Quitoriano, et al., 94 Phil. 903 (1954); Flores v.

Drilon, G.R. No. 104732, 22 June 1993, 223 SCRA 568.


9

Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962, 5 SCRA 1. But

see Justice Concepcions Concurring Opinion in Guevara v. Inocentes, 123


Phil. 201, 211; 16 SCRA 379, 389 (1966).
10

Rollo, p. 38.

11

Ibid., p. 65.
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Pimentel, Jr. vs. Ermita


standing because President Arroyos appointment of
department secretaries in an acting capacity while Congress
is in session impairs the powers12of Congress. Petitioners cite
Sanlakas v. Executive Secretary as basis, thus:
To the extent that the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
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Considering the independence of the Commission on


Appointments from Congress, it is error for petitioners to
claim standing in the present case as members of Congress.
President Arroyos issuance of acting appointments while
Congress is in session impairs no power of Congress. Among
the petitioners, only the following are members of the
Commission on Appointments of the 13th Congress: Senator
Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara,
Senator Ejercito-Estrada, and Senator Osmea as members.
Thus, on the impairment of the prerogatives of members
of the Commission on Appointments, only Senators Enrile,
Lacson, Angara, Ejercito-Estrada, and Osmea have
standing in the present petition. This is in contrast to
Senators Pimentel, Estrada, Lim, and Madrigal, who,
though vigilant in protecting their perceived prerogatives
as members of Congress, possess no standing in the present
petition.
_______________
12

G.R. No. 159085, 3 February 2004, 421 SCRA 656 citing Philippine

Constitution Association v. Enriquez, G.R. No. 113105, 19 August 1994,


235 SCRA 506.
596

596

SUPREME COURT REPORTS ANNOTATED


Pimentel, Jr. vs. Ermita

The Constitutionality of President Arroyos Issuance


of Appointments
to Respondents
as
Acting
Secretaries
Petitioners contend that President Arroyo should not have
appointed respondents as acting secretaries because in case
of a vacancy in the Office of a Secretary, it is only an
Undersecretary
who can be designated as Acting
13
Secretary. Petitioners base their argument on Section 10,
14
Chapter 2, Book IV of Executive Order No. 292 (EO 292),
which enumerates the powers and duties of the
undersecretary. Paragraph 5 of Section 10 reads:
SEC.

10.

Powers

and

Duties

of

the

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Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the
latters absence or inability to discharge his duties for any cause or
in case of vacancy of the said office, unless otherwise provided by
law. Where there are more than one Undersecretary, the Secretary
shall allocate the foregoing powers and duties among them. The
President shall likewise make the temporary designation of Acting
Secretary from among them; and
xxx

Petitioners further assert that while Congress is in session,


there can be no appointments, whether regular or acting, to
a vacant position of an office needing confirmation by the
Commission15on Appointments, without first having obtained
its consent.
In sharp contrast, respondents maintain that the
President can issue appointments in an acting capacity to
department secretaries without the consent of the
Commission on Appointments even while Congress is in
session. Respondents
_______________
13

Rollo, p. 14.

14

Also known as the Administrative Code of 1987.

15

Rollo, p. 12.
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Pimentel, Jr. vs. Ermita


point to Section 16, Article VII of the 1987 Constitution.
Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers lower
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in rank in the President alone, in the courts, or in the heads of


departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.

Respondents also rely on EO 292, which devotes a chapter to


the Presidents power of appointment. Sections 16 and 17,
Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment.The President shall exercise
the power to appoint such officials as provided for in the
Constitution and laws.
SEC. 17. Power to Issue Temporary Designation.(1) The
President may temporarily designate an officer already in
the government service or any other competent person to
perform the functions of an office in the executive branch,
appointment to which is vested in him by law, when: (a) the
officer regularly appointed to the office is unable to perform
his duties by reason of illness, absence or any other cause;
or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation
attached to the position, unless he is already in the government
service in which case he shall receive only such additional
compensation as, with his existing salary, shall not exceed the
salary authorized by law for the position filled. The compensation
hereby authorized shall
598

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SUPREME COURT REPORTS ANNOTATED


Pimentel, Jr. vs. Ermita

be paid out of the funds appropriated for the office or agency


concerned.
(3) In no case shall a temporary designation exceed one
(1) year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically


opposed lines of thought. Petitioners assert that the
President cannot issue appointments in an acting capacity
to department secretaries while Congress is in session
because the law does not give the President such power. In
contrast, respondents insist that the President can issue
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such appointments because no law prohibits such


appointments.
The essence of an appointment in an acting capacity is its
temporary nature. It is a stop-gap measure intended to fill
an office for a limited time until
the appointment of a
16
permanent occupant to the office. In case of vacancy in an
office occupied by an alter ego of the President, such as the
office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice
could assume office.
Congress, through a law, cannot impose on the President
the obligation to appoint automatically the undersecretary
as her temporary alter ego. An alter ego, whether temporary
or permanent, holds a position of great trust and confidence.
Congress, in the guise of prescribing qualifications to an
office, cannot impose on the President who her alter ego
should be.
The office of a department secretary may become vacant
while Congress is in session. Since a department secretary is
the alter ego of the President, the acting appointee to the
office must necessarily have the Presidents confidence.
Thus, by the very nature of the office of a department
secretary, the President must appoint in an acting capacity
a person of her
_______________
16

See Marohombsar v. Alonto, Jr., G.R. No. 93711, 25 February 1991,

194 SCRA 390.


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choice even while Congress is in session. That person may or
may not be the permanent appointee, but practical reasons
may make it expedient that the acting appointee will also be
the permanent appointee.
The law expressly allows the President to make such
acting appointment. Section 17, Chapter 5, Title I, Book III
of EO 292 states that [t]he President may temporarily
designate an officer already in the government service or
any other competent person to perform the functions of an
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office in the executive branch. Thus, the President may


even appoint in an acting capacity a person not yet in the
government service, as long as the President deems that
person competent.
Petitioners assert that Section 17 does not apply to
appointments vested in the President by the Constitution,
because it only applies to appointments vested in the
President by law. Petitioners forget that Congress is not the
only source of law. Law refers to the Constitution, statutes
or acts of Congress, municipal ordinances, implementing
17
rules issued pursuant to law, and judicial decisions.
Finally, petitioners claim that the issuance of
appointments in an acting capacity is susceptible to abuse.
Petitioners fail to consider that acting appointments cannot
exceed one year as expressly provided in Section 17(3),
Chapter 5, Title I, Book III of EO 292. The law has
incorporated this safeguard to prevent abuses, like the use
of acting appointments as a way to circumvent confirmation
by the Commission on Appointments.
In distinguishing ad interim appointments from
appointments in an acting capacity, a noted textbook writer
on constitutional law has observed:
_______________
17

Article 8, Civil Code. See National Amnesty Commission v.

Commission on Audit, G.R. No. 156982, 8 September 2004, 437 SCRA


655.
600

600

SUPREME COURT REPORTS ANNOTATED


Pimentel, Jr. vs. Ermita

Ad interim appointments must be distinguished from


appointments in an acting capacity. Both of them are
effective upon acceptance. But ad interim appointments are
extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy.
Moreover ad interim appointments are submitted to the
Commission on Appointments for confirmation or rejection;
acting appointments are not submitted to the Commission
on Appointments. Acting appointments are a way of
temporarily filling important offices but, if abused, they can
also be a way of circumventing the need for confirmation by
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18

the Commission on Appointments.


However, we find no abuse in the present case. The
absence of abuse is readily apparent from President
Arroyos issuance of ad interim appointments to respondents
immediately upon the recess of Congress, way before the
lapse of one year.
WHEREFORE, we DISMISS the present petition for
certiorari and prohibition.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, ChicoNazario and Garcia, JJ., concur.
Petition dismissed.
Notes.The appointing authority shall be liable for the
payment of the salary of the appointee if the appointment is
disapproved because the appointing authority has issued it
in violation of existing laws or rules making the
appointment unlawful. (Occidental Mindoro National
College [OMNC] vs. Macaraig, 419 SCRA 708 [2004])
_______________
18

JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE

REPUBLIC OF THE PHILIPPINES:ACOMMENTARY 772 (1996).


601

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Pimentel, Jr. vs. Ermita


Appointments to newly-created positions are not covered by
the Attrition Law. (Civil Service Commission vs. Joson, Jr.,
429 SCRA 773 [2004])
The reckoning point in determining the qualifications of
an appointee is the date of issuance of the appointment and
not the date of its approval by the Civil Service Commission
(CSC) or the date of resolution of the protest against it.
(Civil Service Commission vs. De la Cruz, 437 SCRA 403
[2004])
o0o
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