Consti – October 21

II. Other Prohibitions

1. Doromal v. Sandiganbayan
Topic: prohibited participation in a contract with the government; indirect interest
Facts & Issue Held
In October 1987, Special Prosecution Officer II, Yes, it is a violation of the Constitution. A new
Dionisio A. preliminary investigation of the charge against the
Caoili, conducted a preliminary investigation of the petitioner is in order not only because the first was a
charge nullity but also because the accused demands it as his
against the petitioner, Quintin S. Doromal, a former right.
Commissioner of the Presidential Commission on Moreover, the charge against him had been changed, as
Good Government (PCGG), for violation of the directed by the Ombudsman. However, as the absence
AntiGraft and Corrupt Practices Act (RA 3019), of a preliminary investigation is not a ground to quash
Sec. 3(h), in connection with his shareholdings the complaint or information.
and position as president and director of the 1st Allegation: entered into a business transaction or
Doromal International Trading Corporation contract with the Department of Education, Culture and
(DITC) which submitted bids to supply P61 Sports and the National Manpower and Youth Council,”
million worth of electronic, electrical, 2nd Allegation: unlawfully participate[d] in a business
automotive, mechanical and air-conditioning through the Doromal International Trading Corporation,
equipment to the Department of Education, a family corporation of which he is the President, and
Culture and Sports (or DECS) and the National which company participated in the biddings conducted
Manpower and Youth Council (or NMYC). by the Department of Education, Culture and Sports and
the National Manpower & Youth Council, which act or
On January 25,1988, with the approval of Special participation is prohibited by law and the constitution
Prosecutor Raul Gonzales, Caoili filed in the Under Rule 112 of the 1985 Rules on Criminal
Sandiganbayan an information against the petitioner Procedure, it is stated that:
(Criminal Case No. 12766) alleging Doromal as SEC. 3. Procedure. ... no complaint or information for
then the Commissioner of PCGG did then and there an offense cognizable by the Regional Trial Court shall
wilfully and unlawfully have direct or indirect be filed without a preliminary investigation having been
financial interest in the DITC, which business, first conducted
contracts or transactions he is prohibited by law and However, before the filing of such complaint or
the constitution from having any interest The information, the person arrested may ask for a
petitioner filed a petition in this Court questioning preliminary investigation by a proper officer in
the jurisdiction of the "Tanodbayan" to file the accordance with this Rules Its denial over his opposition
information without the approval of the is a "prejudicial error, in that it subjects the accused to
Ombudsman. The Court annulled the information, the loss of life, liberty, or property without due process
stating that Tanodbayan has no authority to conduct of law". Since Section 13 of the Anti-Graft and Corrupt
preliminary investigations and to direct the filing of Practices Act (RA 3019) provides:
criminal cases with the Sandiganbayan, except upon SEC. 13. Suspension and loss of benefits. – Any public
orders of the Ombudsman. Motion to quash was officer against whom any criminal prosecution under a
denied. Over the petitioner's objection (because the valid information ... is pending in court, shall be
President had earlier approved his application for suspended from office.
indefinite leave of absence as That admission allegedly belies the averment in the
PCGG commissioner "effective immediately and information that the petitioner “participated” in the
until final business of the DITC in which he is prohibited by the
Constitution or by law from having any interest. The
Sandiganbayan in its order of Aug. 19, 1988 correctly
 decision of the courts in your case"), the
Sandiganbayan ordered his suspension pendente
lite from his position as
PCGG Commissioner and from any other office he
may be
holding. His motion for reconsideration of that order
was
also denied by the Court. Hence this petition.
Issue: Whether the act of Doromal would constitute Civil Service Law that "Pursuit of private business...
a violation of the Constitution
observed that "the presence of a signed document
bearing the signature of accused Doromal as part of the
application to bid...is not a sine qua non", for, the
Ombudsman indicated that the petitioner "can rightfully
be charged...with having participated in a business
which act is absolutely prohibited by Section 13 of
Article VII” because "the DITC remained a family
corporation in which Doromal has at least an indirect
interest."
The constitutional ban is similar to the prohibition in the
without the permission required by Civil Service Rules
and Regulations" shall be a ground for disciplinary
action against any officer or employee in the civil
service. He shall be suspended regardless of his
approved leave of absence. Since his preventive
suspension has exceeded the reasonable maximum
period of 90 days provided in Sec. 42 of the Civil
Service Decree of the Philippines (P.D. 807), it should
now be lifted.

Section 14. Appointments extended by an Acting President shall remain effective, unless revoked
by the elected President, within ninety days from his assumption or reassumption of office.

Section 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.

Temporary Appointments

2. De Castro v. JBC – 615 SCRA 666 [2010]

Facts & Issue Held
The case started with the compulsory retirement Yes. Two constitutional provisions are seemingly in
of Chief Justice Reynato S. Puno by May 17, conflict. The first, Section 15, Article VII (Executive
2010, which occurs just seven days after the Department):
coming presidential elections on May 10, 2010. Section 15. Two months immediately before the next
Under Section 4(1), in relation to Section 9, presidential elections and up to the end of his term, a
Article VIII, that vacancy shall be filled within President or Acting President shall not make appointments,
ninety days from the occurrence thereof from a except temporary appointments to executive positions when
list of at least three nominees prepared by the continued vacancies therein will prejudice public service or
Judicial and Bar Council for every vacancy. endanger public safety.
HOWEVER Section 15, Article VII of the The other, Section 4 (1), Article VIII (Judicial Department):
Constitution bans the President from Section 4. (1). The Supreme Court shall be composed of a
appointmenting two (2) months immediately Chief Justice and fourteen Associate Justices. It may sit en
before the next presidential elections and up to the banc or in its discretion, in division of three, five, or seven
end of his term. Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.
On a January 18, 2010 meeting en banc, the As can be seen, Article VII is devoted to the Executive
Judicial and Bar Council (JBC) passed a Department, and, among others, it lists the powers vested
resolution that opened the position of Chief by the Constitution in the President. The presidential power
Justice for application or recommendation. of appointment is dealt with in Sections 14, 15 and 16 of
Conformably with its existing practice, the JBC the Article. Article VIII is dedicated to the Judicial
automatically considered for the position of Chief Department and defines the duties and qualifications of
Justice the five most senior of the Associate Members of the Supreme Court, among others. Section 4(1)
Justices of the Court, namely: Associate Justice and Section 9 of this Article are the provisions specifically
Antonio T. Carpio; Associate Justice Renato C. providing for the appointment of Supreme Court Justices.
Corona; Associate Justice Conchita Carpio The court believes then that had the framers of the
Morales; Associate Justice Presbitero J. Velasco, Constitution intended to extend the prohibition contained in
Jr.; and Associate Justice Antonio Eduardo B. Section 15, Article VII to the appointment of Members of
Nachura. However, the last two declined their the Supreme Court, they could have explicitly done so.
nomination through letters. They could not have ignored the meticulous ordering of the
The OSG contends that the incumbent President provisions. They would have easily and surely written the
may appoint the next Chief Justice, because the prohibition made explicit in Section 15, Article VII as being
prohibition under Section 15, Article VII of the equally applicable to the appointment of Members of the
Constitution does not apply to appointments in the Supreme Court in Article VIII itself, most likely in Section
Supreme Court. It argues that any vacancy in the 4 (1), Article VIII. That such specification was not done
Supreme Court must be filled within 90 days from only reveals that the prohibition against the President
its occurrence, pursuant to Section 4(1), Article or Acting President making appointments within two
VIII of the Constitution; that in their deliberations months before the next presidential elections and up to
on the mandatory period for the appointment of the end of the Presidents or Acting Presidents term does
Supreme Court Justices, the framers neither not refer to the Members of the Supreme Court.
mentioned nor referred to the ban against Although Valenzuela came to hold that the prohibition
midnight appointments, or its effects on such covered even judicial appointments, it cannot be disputed
period, or vice versa; that had the framers that the Valenzuela dictum did not consider the intent of the
intended the prohibition to apply to Supreme Constitutional Commission.
Court appointments, they could have easily Moreover, the usage in Section 4(1), Article VIII of the
expressly stated so in the Constitution, which word shall an imperative, operating to impose a duty that
explains why the prohibition found in Article VII may be enforcedshould not be disregarded. Thereby,
(Executive Department) was not written in Article Sections 4(1) imposes on the President the imperative duty
VIII (Judicial Department); and that the framers to make an appointment of a Member of the Supreme Court
also incorporated in Article VIII ample within 90 days. It did not consider that Section 4(1) of Art.
restrictions or limitations on the Presidents power VIII is independent of other provision. We thus reverse
to appoint members of the Supreme Court to Valenzuela.
ensure its independence from political Second. Section 15, Article VII does not apply as well to all
vicissitudes and its insulation from political other appointments in the Judiciary. There is no question
pressures, such as stringent qualifications for the that one of the reasons underlying the adoption of Section
positions, the establishment of the JBC, the 15 as part of Article VII was made in order to eliminate
specified period within which the President shall midnight appointments of the outgoing Chief as a form of
appoint a Supreme Court Justice. vote buying.
Issues: Whether the President can appoint a SC Given the rationale, it is proper then to assume that the
Justice? framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment
of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the
unhurried and deliberate prior process of

The exchanges during deliberations of the Constitutional

Commission on October 8, 1986 further show that the
filling of a vacancy in the Supreme Court within the 90-day
period was a true mandate for the President.
Moreover, the usage in Section 4(1), Article VIII of the
word shall an imperative, operating to impose a duty that
may be enforcedshould not be disregarded. Thereby,
Sections 4(1) imposes on the President the imperative duty
to make an appointment of a Member of the Supreme Court
within 90 days. It did not consider that Section 4(1) of Art.
VIII is independent of other provision. We thus reverse
Valenzuela.

Second. Section 15, Article VII does not apply as well to all
other appointments in the Judiciary. There is no question
that one of the reasons underlying the adoption of Section
15 as part of Article VII was made in order to eliminate
midnight appointments of the outgoing Chief as a form of
vote buying.
Given the rationale, it is proper then to assume that the
framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment
of the JBC and their subjecting the nomination and
screening of candidates for judicial positions to the
unhurried and deliberate prior process of the JBC ensured
that there would no longer be midnight appointments to the
Judiciary.

Lastly, Section 14, Section 15, and Section 16 are obviously

of the same character, in that they affect the power of the
President to appoint. The fact that Section 14 and Section
16 refer only to appointments within the Executive
Department renders conclusive that Section 15 also applies
only to the Executive Department. This conclusion is
consistent with the rule that every part of the statute must
be interpreted with reference to the context, i.e. that every
part must be considered together with the other parts, and
kept subservient to the general intent of the whole
enactment.
Section 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 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 disapproved
by the Commission on Appointments or until the next adjournment of the Congress.

I. Nature of the Appointing Power

3. Government v. Springer
Topic: power to appoint as executive
Facts & Issue Held
National Coal Company (NCC) was created by the No. The court believes that the power of appointment
Philippine Congress through Act No. 2822. The in the Philippines appertains, with minor exceptions,
government eventually became the owner of 99% of to the executive department; that membership in the
its stocks. In November 1926, the Governor-General voting committee in question is an office or executive
(Leonard Wood) issued E.O. No. 37 which divested function; that the National Coal Company and similar
the voting rights of the Senate President and House corporations are instrumentalities of the
Speaker in the NCC. The EO emphasized that the Government; that the duty to look after government
voting right should be solely lodged in the Governor-
agencies and government property belongs to the
General who is the head of the government (Presidentexecutive department.
at that time was considered the head of state but does
Thus the placing of members of the Philippine
not manage government affairs). A copy of the said Legislature on the voting committee constitutes an
EO was furnished to the Senate President and the invasion by the Legislative Department of the
House Speaker. privileges of the Executive Department. The
A meeting was held and there the Government- legislative department under the Organic law is only
General asserted that he has the sole power to authorized to create office, which in this case is Act
represent the government. The Senate President and No. 2822 or the NCC itself. Although there are some
Speaker of the House however disagreed. instances that the power to appoint by the Legislature
Notwithstanding EO No. 37 and the objection of the in the guise of Secretaries of Departments, of officers
Governor-General they still elected Milton Springer and employees for the Legislature, and of Resident
and four others as Board of Directors of NCC that Commissioners, the rule is that the executive
gave the new directors power to vote. department has the power to appoint public officials.
In this case, given that NCC is a GOCC under the
Issue: Whether the Senate President as well as the government, it is appropriate to hold that the
House Speaker can validly elect the Board Members executive has the authority to appoint positions to
of NCC. them including its directors.

4. Datu Michael Abas Kida v. Senate of the Philippines

Topic: Interpretation of power of president to appoint OICs
Facts & Issue Held
The case started with RA 6734 or the Organic Act Yes. The provision classifies into four groups the
of ARMM. This was amended by RA 9054 that officers that the President can appoint:
First, the heads
mandated the holding of elections on the Second of the executive departments; ambassadors; other
Monday of September. Before the September 2001 public ministers and consuls; officers of the Armed
elections started however, it was moved to 26 Forces of the Philippines, from the rank of colonel or
November 2001 through RA 9140. naval captain; and other officers whose appointments
Four years later, Congress enacted RA 9333 finally are vested in the President in this Constitution;
fixing the date of “regular elections” as it will now
Second, all other officers of the government whose
be held on Second Monday of August 2005 appointments are not otherwise provided for by law;
making it thus permanent every three years. House Third, those whom the President may be authorized by
Bill 4146 however moved to change it to Second law to appoint; and
Monday of May 2013 and every three years after. Fourth, officers lower in rank whose appointments the
The House Bill aimed to synchronize the date of Congress may by law vest in the President alone
elections to go along with the national elections. Since the President’s authority to appoint OICs
The said bill provided interim officials appointed emanates from RA No. 10153, it falls under the third
by the President to act as officer for the meantimegroup of officials that the President can appoint
under Article 7 Section 16 (RA 10153) which On the issue that the appointed officials MUST be
states: elective and representative of the constituent political
The President shall nominate and, with the consent units for the OIC to be truly representative. The court
of the Commission on Appointments, appoint the believes that it is a misreading of RA No. 10153,
heads of the executive departments, ambassadors, mistakenly reading RA 10153 as a law that changes
other public ministers and consuls or officers of the
the elective and representative character of ARMM
armed forces from the rank of colonel or naval positions.
captain, and other officers whose appointments are What RA No. 10153 in fact only does is to “appoint
vested in him in this Constitution. He shall also officers-in-charge for the Office of the Regional
appoint all other officers of the Government Governor, Regional Vice Governor and Members of
whose appointments are not otherwise provided the Regional Legislative Assembly who shall perform
for by law, and those whom he may be the functions pertaining to the said offices until the
authorized by law to appoint. The Congress may, officials duly elected in the May 2013 elections shall
by law, vest the appointment of other officers lower
have qualified and assumed office.” This power is far
in rank in the President alone, in the courts, or in
different from appointing elective ARMM officials for
the heads of departments, agencies, commissions, the abbreviated term ending on the assumption to office
or boards. The House bill was approved by the of the officials elected in the May 2013 elections.
Congress and the Senate passed its own version RA No. 10153, in fact, provides only for
with basically the same provision with some synchronization of elections and for the interim
modifications. Eventually, HoR adopted the measures that must in the meanwhile prevail. Aside
version of the Senate and thus it formed RA 10153 from its order for synchronization, it is purely and
that the president signed into law. simply an interim measure responding to the
adjustments that the synchronization requires.
Issue: Whether the appointment by the President of Regarding the claim thatthe interim measure is an
OICs to govern the ARMM during the pre- unreasonable move for Congress to adopt, given the
synchronization period pursuant to Sections 3, 4 legal situation that the synchronization unavoidably
and 5 of this law is valid? brought with it. In plain terms it means that since the
dates of elections are usually moved, it allows for
lengthening or shortening the term of the elected
ARMM officials. It is up to the choice of the President
 to appoint – for a fixed and specific period as an
interim measure.
The said conclusion would not be true under the very
limited circumstances contemplated in RA No. 10153
where the period is fixed and, more importantly, the
terms of governance – both under Section 18, Article X
of the Constitution and RA No. 9054–will not
systemically be touched nor affected at all.

5. Velicaria – Garafil v. OP
Topic: Revocation of GMA appointments

FACTS:

• Prior to the conduct of the May 2010 elections, then President Macapagal-Arroyo issued more
than 800 appointments to various positions in several government offices.

o The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads:
Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger
public safety.

• Thus, for purposes of the 2010 elections, 10 March 2010 was the cut-off date for valid
appointments and the next day, 11 March 2010, was the start of the ban on midnight
appointments.

o Section 15, Article VII of the 1987 Constitution recognizes as an exception to the ban on
midnight appointments only “temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety.”

o None of the petitioners claim that their appointments fall under this exception.

• Summary of appointments:

. Issuance of EO 2 - On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing,

and revoking appointments issued by President Macapagal-Arroyo which violated the
constitutional ban on midnight appointments (refer to case for whole text of the E.O.) 


. On 6 August 2010, Sol. Gen. Cadiz instructed a Senior Assistant Solicitor General to inform
the officers and employees affected by EO 2 that they were terminated from service
effective the next day. 


. The present consolidated cases involve four petitions: 


• E.O. No. 2 defined midnight appointments as: 


• “SECTION 1. Midnight Appointments Defined. – The following appointments made by the

former President and other 
appointing authorities in departments, agencies, offices, and
instrumentalities, including government-owned or controlled 
corporations, shall be
 considered as midnight appointments: 


• Those made on or after March 11, 2010, including all appointments bearing dates prior to
March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public
office on or after March 11, 2010, except temporary appointments in the executive
positions when continued vacancies will prejudice public service or endanger public
safety as may be determined by the appointing authority.” 


1. G.R. No. 203372 with Atty. Cheloy E. Velicaria-Garafil (Atty. Velicaria-Garafil), who was
appointed State Solicitor II at the Office of the Solicitor General (OSG), as petitioner;
2. G.R. No. 206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), who was appointed
Prosecutor IV (City Prosecutor) of Quezon City, as petitioner;

3. G.R. No. 209138 with Irma A. Villanueva (Villanueva), who was appointed Administrator for
Visayas of the Board of Administrators of the Cooperative Development Authority (CDA), and
Francisca B. Rosquita (Rosquita), who was appointed Commissioner of the National Commission
of Indigenous Peoples (NCIP), as petitioners; and

4. G.R. No. 212030 with Atty. Eddie U. Tamondong (Atty. Tamondong), who was appointed
member of the Board of Directors of the Subic Bay Metropolitan Authority (SBMA), as petitioner.

• All petitions question the constitutionality of Executive Order No. 2 (EO 2) for being inconsistent
with Section 15, Article VII of the 1987 Constitution.

ISSUE/ HELD:

Does petitioners’ appointments violate Section 15, Article VII of the 1987 Constitution?
YES.

Is E.O. 2 Constitutional? YES.

• Aytona v. Castillo is the basis for Section 15, Article VII of the 1987 Constitution. Aytona defined
“midnight or last minute” appointments for Philippine jurisprudence.

o President Carlos P. Garcia submitted on 29 December 1961, his last day in office, 350
appointments, including that of Dominador R. Aytona for Central Bank Governor.

o President Diosdado P. Macapagal assumed office on 30 December 1961, and issued on 31

December 1961 Administrative Order No. 2 recalling, withdrawing, and cancelling all
appointments made by President Garcia after 13 December 1961 (President Macapagal’s
proclamation date).

o President Macapagal appointed Andres V. Castillo as Central Bank Governor on 1 January

1962.
o This Court dismissed Aytona’s quo warranto proceeding against Castillo, and upheld
Administrative Order No.

2’s cancellation of the “midnight or last minute” appointments.

• None of the petitioners have shown that their appointment papers (and transmittal letters) have
been issued (and released) before the ban.” 


• The dates of receipt by the MRO, which in these cases are the only reliable evidence of actual
transmittal of the appointment papers by President Macapagal-Arroyo, are dates clearly
 falling during the appointment ban. 


• Thus, this ponencia and the dissent both agree that all the appointments in these cases are
midnight appointments in violation of Section 15, Article VII of the 1987 Constitution 


• During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now
retired Supreme Court Chief Justice) Hilario G. Davide, Jr. referred to this Court’s ruling
in Aytona and stated that his proposal seeks to prevent a President, whose term is about
to end, from preempting his successor by appointing his own people to sensitive
positions. 


• The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytona’s
intangible “stratagem to beat the deadline,” and also on the act of “preempting the
President’s successor,” which shows a lack of “good faith, morality and propriety.” 


o Subject to only one exception, appointments made during this period are thus automatically
prohibited under the Constitution, regardless of the appointee’s qualifications or even of the
President’s motives.

o The period for prohibited appointments covers two months before the elections until the end of
the President’s term.

o The Constitution, with a specific exception, ended the President’s power to appoint “two
months immediately before the next presidential elections.”

o For an appointment to be valid, it must be made outside of the prohibited period or,
failing that, fall under the specified exception.

• The following elements should always concur in the making of a valid (which should be
understood as both complete and effective) appointment:

o authority to appoint and evidence of the exercise of the authority;
o transmittal of the
appointment paper and evidence of the transmittal;
o a vacant position at the time of
appointment; and
o receipt of the appointment paper and acceptance of the appointment by the
appointee who possesses all the

qualifications and none of the disqualifications.

§ The concurrence of all these elements should always apply, regardless of when the
appointment is made, whether outside, just before, or during the appointment ban. These steps
in the appointment process should always concur and operate as a single process.

o There is no valid appointment if the process lacks even one step.

§ And, unlike the dissent’s proposal, there is no need to further distinguish between an effective
and an ineffective appointment when an appointment is valid.

On Appointment Power:

• Appointing Authority.

o The President’s exercise of his power to appoint officials is provided for in the
Constitution and laws.

§ Discretion is an integral part in the exercise of the power of appointment.

• Transmittal.

o In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we held: The

power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who
is best qualified among those who have the necessary qualifications and eligibilities. It is
a prerogative of the appointing power

o It is not enough that the President signs the appointment paper. There should be
evidence that the President intended the appointment paper to be issued. It could
happen that an appointment paper may be dated and signed by the President months
before the appointment ban, but never left his locked drawer for the entirety of his term.
Release of the appointment paper through the MRO is an unequivocal act that signifies
the President’s intent of its issuance.

o The MRO was created by Memorandum Order No. 1, Series of 1958, Governing the
Organization and Functions of the Executive Office and General Matters of Procedure
Therein. Initially called the Records Division, the MRO functioned as an administrative
unit of the Executive Office

o For purposes of verification of the appointment paper’s existence and authenticity, the
appointment paper must bear the security marks (i.e., handwritten signature of the
President, bar code, etc.) and must be accompanied by a transmittal letter from the
MRO.

o The MRO’s exercise of its mandate does not prohibit the President or the Executive
Secretary from giving the appointment paper directly to the appointee. However, a
problem may arise if an appointment paper is not coursed through the MRO and the
appointment paper is lost or the appointment is questioned. The appointee would then
have to prove that the appointment paper was directly given to him.

o Based on the testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance

and Retrieval Division of the MRO, the transmittal of petitioners’ appointment papers is
questionable.

• Vacant Position.

§  (Note: The Q&A here on the conduct of the transmittals follow for the
different petitioners) 


§  Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as

State Solicitor II of the Office of the 
Solicitor General, was her appointment
paper released through the MRO? 


§  A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely 
turned over to the MRO on May 13,
2010. The transmittal letter that was turned over to the MRO was already
stamped “released” by the Office of the Executive Secretary, but the date and
time as to when it was actually received were unusually left blank. 


§  The possession of the original appointment paper is not

indispensable to authorize an appointee to assume office. If it were
indispensable, then a loss of the original appointment paper, which could be
brought about by negligence, accident, fraud, fire or theft, corresponds to a loss
 of the office.56 However, in case of loss of the original appointment paper, the
appointment must be evidenced by a certified true copy issued by the proper
office, in this case the MRO. 


o An appointment can be made only to a vacant office. An appointment cannot be made

to an occupied office. The incumbent must first be legally removed, or his appointment
validly terminated, before one could be validly installed to succeed him.

II. Kinds of Presidential Appointments and Confirmation requirement

A. 1st Sentence: 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.

6. Bautista v. Salonga
Topic: CHR Chair; no CA confirmation
Facts & Issue Held
On August 27, 1987, President Cory Aquino (1) Yes. The Court held that the it is within the
appointed petitioner Bautista as permanent authority of the President, vested upon her by the
Chairman of the Commission on Human Rights Constitution, that she appoint Executive officials.
(CHR). Bautista took her oath of office on The second sentence of the provision Section 16,
December 22, 1988 to Chief Justice Marcelo Article VII provides that the President is
Fernan and immediately acted as such. authorized by law to appoint, without
On January 9, 1989, the Secretary of the confirmation of CoA, several government
Commission on Appointments (CoA) wrote a officials. The position of Chairman of CHR is not
letter to Bautista requesting for her presence among the positions mentioned in the first
along with several documents at the office of sentence of Sec. 16, Art VII of the 1987
CoA on January 19. Bautista refused to be placed Constitution, which provides the appointments
under CoA's review hence this petition filed with which are to be made with the confirmation of
the Supreme Court. CoA. It therefore follows that the appointment of
the Chairman of CHR by the President is to be
While waiting for the progress of the case, made and finalized even without the review or
President Aquino appointed Hesiquio R. participation of CoA. Bautista's appointment as
Mallillin as "Acting Chairman of the the Chairman of CHR, therefore, was already a
Commission on Human Rights" but he was not completed act on the day she took her oath as the
able to sit in his appointive office because of appointment was finalized upon her acceptance,
Bautista's refusal to surrender her post. Malilin expressly stated in her oath.
invoked EO 163-A which provides that the
tenure of the Chairman and the Commissioners (2) No. As seen, the President appointed
of the CHR should be at the pleasure of the petitioner Bautista on 17 December 1988 to the
President thus stating that Bautista shall be position of Chairman of the Commission on
subsequently removed as well. Human Rights with the advice to her that by
virtue of such appointment—not, until confirmed
Issues: (1) Whether the President's appointment by the Commission on Appointments— she
is considered constitutional. could qualify and enter upon the performance of
her duties after taking her oath of office. The
(2) Whether Bautista's appointment is subject to
CoA's confirmation.
court believes that even if the case shows that the
President submits to CoA for confirmation, the
act itself was done there and then and thus
Bautista can act as Chairman of CHR after her
appointment for reasons stated above.
Additionally, the appointment is not an ad-
interim appointment covered by COA since there
was no vacancy during the time of appointment,
which was 14 January 1989, which would make
the appointment only ad-interim for a vacant
position.
Furthermore, the Court held that the provisions
of EO 163-A is unconstitutional and thus cannot
be invoked by Mallillin. The Chairman of CHR
cannot be removed at the pleasure of the
President for it is constitutionally guaranteed that
they must have a term of office.

7. Quintos-Deles v. CA
Topic: Sectoral representative; CA confirmation
Facts & Issue Held
On April 6, 1988, petitioner and three others were Yes. We held in
appointed Sectoral Representatives by the Sarmiento vs. Mison, et al. that under
President pursuant to Article VII, Section 16, Sec. 16 of Article VII 1st paragraph that such
paragraph 2 and Article XVIII, Section 7 of the appointments require the confirmation of CoA. The
Constitution. The following are the appointed provision reads: First, the heads of the executive
officers: departments, ambassadors, other public ministers and
Teresita Quintos-Deles —-Women Al Ignatius consuls officers of the armed forces from the rank of
G. Lopez—Youth Bartolome Arteche —-Peasant colonel or naval captain, and other officers whose
Rey Magno Teves—-Urban Poor appointments are vested in him in this Constitution;
On April 18, 1988, the above-mentioned sectoral
representatives were scheduled to take their oaths Since the seats reserved for sectoral representatives in
before Speaker Ramon V. Mitra, Jr. at the paragraph 2, Section 5, Art. VI may be filled by
Session Hall of Congress after the Order of appointment by the President by express provision of
Business. However, petitioner and the three other Section 7, Art. XVIII of the Constitution, it is
sectoral representatives- appointees were not undubitable that sectoral representatives to the House
able to take their oaths and discharge their duties of Representatives are among the "other officers
as members of Congress due to the opposition of whose appointments are vested in the President in this
some congressmen-members of the Commission Constitution," referred to in the first sentence of
on Appointments, who insisted that sectoral Section 16, Art. VII whose appointments are subject
representatives must first be confirmed by the to confirmation by the Commission on Appointments.
respondent Commission before they could take The invocation of Art. XVIII, Section 7 of the
their oaths and/or assume office as members of Constitution as authority for the appointment of
the House of Representatives. The oath-taking petitioner places said appointment within the ambit of
was then suspended. the first sentence of Section 16, Art. VII
 Additionally, the reference to paragraph 2, Section 16
Issue: Whether the Constitution requires the of Article VII as additional authority for the
appointment of sectoral representatives to the appointment of petitioner is of vital significance to the
HoR to be confirmed by the CoA. case at bar. The records show that petitioner's
appointment was made on April 6, 1988 or while
Congress was in recess (March 26, 1988 to April 17,
1988); hence, the reference to the said paragraph 2 of
Section 16, Art. VII in the appointment extended to
her. This is because Deles' appointment was made
pursuant to Art. VII, Section 16, par.2 which gives the
President”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. Hence, the reference to the said paragraph
2 of Section 16, Art. VII in the appointment extended
to her.

8. Calderon v. Carale
Topic: NLRC; list is exclusive
Facts & Issue
Based on Sarmiento III v. Mison; Bautista v. Salonga;
and Quintos Deles, et al. v. The Commission on
Constitutional Commissions the following doctrines
have been set:
. (1) Confirmation by the Commission on
Appointments (CA) is required only for
presidential appointees mentioned in the first
sentence of Section 16, Article VII, including,
those officers whose appointments are
expressly vested by the Constitution itself in the
president (like sectoral representatives to
Congress and members of the constitutional
commissions of Audit, Civil Service and
Election). 
 16 of Article VII. These were (1) the exclusion of the
. (2) Confirmation of CA is required only for
presidential appointees mentioned in the first
sentence of Section 16, Article VII, including,
those officers whose appointments are
expressly vested by the Constitution itself in the
president (like sectoral representatives to
Congress and members of the constitutional
commissions of Audit, Civil Service and
Election). In Mison, it was also held that when
Held
No. There are 4 groups of officers whom the Pres shall
appoint:
1) Heads of exec depts., ambassadors, other public
ministers & consuls, officers of the armed forces from
the rank of colonel or naval captain, & other officers
whose appointment are vested in him in this Consti.
2) All other officers of the Govt whose appointments
are not otherwise provided for by law
3) Those whom
the Pres may be authorized by law to appoint
4) Officers lower in rank whose appointments the
Congress may by law vest in the Pres alone.
In the case of Mison, there were two (2) major changes
proposed and approved by the Commission in Section
appointments of heads of bureaus from the
requirement of confirmation by the CA; and (2) the
exclusion of appointments made under the second
sentence of the section from the same requirement.
The second sentence of Sec. 16, Art. VII refers to all
other officers of the government whose appointments
are not otherwise provided for by law and those whom
the President may be authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners
 Congress creates inferior offices but omits to fall within the second sentence of Section 16, Article
provide for appointment thereto, or provides in VII of the Constitution, more specifically under the
an unconstitutional manner for such "third groups" of appointees referred to in Mison, i.e.
appointments, the officers are considered as those whom the President may be authorized by law
among those whose appointments are not to appoint.
otherwise provided for by law. 

. Thus it is unconstitutional for RA 6715 to require the
Sometime in March 1989, RA 6715 (Herrera-Veloso confirmation of the CA for the appointments of
Law), amending the Labor Code (PD 442) was respondents Chairman and Members of the NLRC
approved. It provides in Section 13 thereof as follows: because:
The Chairman, the Division Presiding Commissioners . 1) It amends by legislation, the first sentence
and other Commissioners shall all be appointed by the of Sec. 16, Art. VII of the Constitution by
President, subject to confirmation by the Commission on adding thereto appointments requiring
Appointments. Appointments to any vacancy shall come confirmation by the Commission on
from the nominees of the sector which nominated the Appointments; and 

predecessor. The Executive Labor Arbiters and Labor . 2) It amends by legislation the second
Arbiters shall also be appointed by the President, upon sentence of Sec. 16, Art. VII of the
recommendation of the Secretary of Labor and Constitution, by imposing the confirmation of
Employment, and shall be subject to the Civil Service the Commission on Appointments on
Law, rules and regulations. appointments which are otherwise entrusted
only with the President. 

Pursuant to said law (RA 6715), President Aquino Sec 16, Art VII was deliberately intended by the
appointed the Chairman and Commissioners of the framers to be a departure from the system embodied
NLRC. This petition then questions the constitutionality in the 1935 Constitution where the CA exercised the
of the said appointments since the Solicitor General power of confirmation over almost all presidentiall
(SolGen) contends that RA 6715, which amended the appointments, leading to many cases of abuse of such
Labor Code, transgresses Section 16, Article VII by power of confirmation.
expanding the confirmation powers of the Commission
on Appointments without constitutional basis. Mison
and Bautista laid the issue to rest since the SolGen had
it been the intention to allow Congress to expand the list
of officers whose appointments must be confirmed by
the Commission on Appointments, the Constitution
would have said so by adding the phrase "and other
officers required by law" at the end of the first sentence,
or the phrase, "with the consent of the Commission on
Appointments" at the end of the second sentence of the
said Article. Evidently, our Constitution has
significantly omitted to provide for such additions.
Issue: Whether Congress may, by law, require
confirmation by CA of appointments extended by the
President to government officers additional to those
expressly mentioned in the 1st sentence of Sec. 16, Art.
VII whose appointments require confirmation by the CA.
B. 2nd Sentence: 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.

9. Sarmineto III v. Mison

Topic: Enumeration is limited; 3rd sentence – use of the word “alone” as mere lapsus; head of bureau;
no CA confirmation
Facts & Issue Held
This case is a petition for prohibition while the No. The President does not need approval from
petitioners are taxpayers, lawyers, members of the COA to appoint the Commissioner of the
the Integrated bar of the Philippines and Bureau of Customs. The court first looked at the
professors of constitutional law seeking to enjoin history of the Constitution wherein in the 1935
the respondent Salvador Mison from performing constitution, much of the executive power was
his as appointed Commissioner of the Bureau of limited by the legislature and it resulted in horse
Customs. The petitioners would likewise enjoin trading/seats were given to the highest bidder
respondent Guillermo Carague in his capacity as
while in the 1973 Constitution, Marcos took
Secretary of Budget Management from effecting
absolute power in his appointments. The court
disbursements in payment of petitioner’s salary
construed the 1987 constitution as a middle
and emoluments. Petitioner’s argument is
ground wherein there are officers that require no
grounded on the fact that Mison’s appointment is
confirmation from the COA. The Supreme
unconstitutional on the grounds that it was not
Court then reviewed the tapes of the of
approved by the Commission of Appointments.
Constitutional Commission and it was revealed
Respondents aver that the appointment was in
that their intent was to was to exclude certain
line with the constitutional powers that are
granted to the chief executive to appoint officials positions from confirmation by the COA as
in government. The court in this instance tried to such in the case Bureau Heads that were
construe the meaning behind Section 16, Article removed from the first group of individuals that
VII of the constitution by grouping them into four required approval. This is expressed as well in
groups. The first group is stipulated to require Sec. 601 of the tariff and customs code of the
approval from the COA. Philippines as amended by PD 34 which states
. First, the heads of the executive that the commissioner and the deputy
departments; ambassadors; other public commissioner of customs shall be appointed by
ministers and consuls; officers of the the president of the Philippines.
Armed Forces of the Philippines, from
Court then reviewed the tapes of the of
the rank of colonel or naval captain; and
Constitutional Commission and it was revealed
other officers whose appointments are
that their intent was to was to exclude certain
vested in the President in this
positions from confirmation by the COA as such
Constitution; 

in the case Bureau Heads that were removed
. Second, all other officers of the
from the first group of individuals that required
government whose appointments are not
approval. This is expressed as well in Sec. 601 of
otherwise provided for by law; 

the tariff and customs code of the Philippines as
. Third, those whom the President may be amended by PD 34 which states that the
authorized by law to appoint; and 
 commissioner and the deputy commissioner of
. Fourth, officers lower in rank whose customs shall be appointed by the president of
appointments the Congress may by law the Philippines.
vest in the President alone 
Issue:
Whether the president needs approval
from the Commission on Appointments to
 appoint officers who fall in the 2nd, 3rd
and 4th category. 


10. Pobre v. Mendieta

Topic: PRC Commissioner; no CA confirmation
Facts & Issue Held
The controversy began on January 2, 1992, when the term of empowers the President to appoint "those
office of Honorable Julio B. Francia as PRC whom he may be authorized by law to
Commissioner/Chairman expired. At that time, Mariano A. appoint." The law that authorizes him to
Mendieta was the senior Associate Commissioner and appoint the PRC Commissioner and Associate
Hermogenes P. Pobre was the second Associate Commissioners, is P.D. 223, Section 2, which
Commissioner of the PRC. On February 15, 1992, President provides that the Commissioner and
Corazon C. Aquino appointed the petitioner, then an Associate Commissioners of the PRC are "all
Associate Commissioner, as the PRC Commissioner/ to be appointed by the President for a term of
Chairman. He took his oath of office on February 17, 1992. nine (9) years, without reappointment, to start
Even before Commissioner Pobre's appointment, the private from the time they assume office.
respondent, Mariano A. Mendieta, as the Senior Associate The Court finds unacceptable the view that
Commissioner, filed a petition for declaratory relief against
every vacancy in the Commission (except the
Commissioner Pobre, Executive Secretary Drilon, and Acting position of "junior" Associate Commissioner)
Secretary of Justice Eduardo Montenegro, praying that they shall be filled by "succession" or by
be enjoined from appointing, or recommending the "operation of law" for that would deprive the
appointment of Associate Commissioner Pobre as Chairman President of his power to appoint a new PRC
of the PRC because under Section 2 of P.D. No. 223, he Commissioner and Associate Commissioners
(Mendieta), as the senior Associate Commissioner, was — "all to be appointed by the President" under
legally entitled to succeed Francia as Chairman of the PRC. P.D. No. 223. The absurd result would be that
He cites the following provision of Section 2, P.D. No. 223 the only occasion for the President to exercise
which provides that: his appointing power would be when the
position of junior (or second) Associate
. . . any vacancy in the Commission shall be filled for the Commissioner becomes vacant. We may not
unexpired term only with the most Senior of the Associate presume that when the President issued P.D.
Commissioners succeeding the Commissioner at the No. 223, he deliberately clipped his
prerogative to choose and appoint the head of
Issue: Whether the President may appoint as the PRC and limited himself to the selection
Commissioner/Chairman of the PRC another Associate and appointment of only the associate
Commissioner or any person other than the Senior Associate commissioner occupying the lowest rung of
Commissioner! the ladder in that agency. Since such an
absurdity may not be presumed, the Court
should so construe the law as to avoid it.
There is thus no excuse to construe the clause:
"at the expiration of his term, resignation or
removal" as pointing to a moment that the
President can exercise his power only when
the Chairman or Commissioner still has an
unexpired term that was not finished due to
resignation or removal. Such interpretation
cannot be possible since the clause does not
 refer to the Chairman/Commissioner. Such
interpretation would contradict the first clause
providing that he will be succeeded by the
senior Associate Commissioner "for the
unexpired portion of his term only." There can
be no more "unexpired term" to speak of if the
Chairman stepped down "at the expiration of
his term."

11. Flores v. Drilon

Topic: Chair and the Mayor of Olongapo City
Facts & Issue Held

C. 3rd Sentence: The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.
12. Rufino v. Endriga
Facts & Issue Held
President Ferdinand E. Marcos issued EO 30 creating the Yes. Section 6(b) and (c) of PD 15 is thus
Cultural Center of the Philippines as a trust governed by a irreconcilably inconsistent with Section 16,
Board of Trustees of seven members to preserve and promote Article VII of the 1987 Constitution. It does
Philippine culture. not matter that Section 6(b) of PD 15.
On 5 October 1972, or soon after the declaration of Martial empowers the remaining trustees to "elect"
Law, President Marcos issued PD 15, the CCP’s charter, and not "appoint" their fellow trustees for
which converted the CCP under EO 30 into a non-municipal the effect is the same, which is to fill
public corporation free from the “pressure or influence of vacancies in the CCP Board. A statute cannot
politics.” PD 15 increased the members of CCP’s Board from circumvent the constitutional limitations on
seven to nine trustees. Later, Executive Order No. 1058, the power to appoint by filling vacancies in a
issued on 10 October 1985, increased further the trustees to public office through election by the co-
11. workers in that office. Such manner of filling
vacancies in a public office has no
After the People Power Revolution in 1986, then President constitutional basis.
Corazon C. Aquino asked for the courtesy resignations of the Further, Section 6(b) and (c) of PD 15 makes
then incumbent CCP trustees and appointed new trustees to the CCP trustees the independent appointing
the Board. Eventually, during the term of President Fidel V. power of their fellow trustees. The creation of
Ramos, the CCP Board included Endriga, Lagdameo, Sison, an independent appointing power inherently
Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and conflicts with the President's power to
Manuel T. Mañosa ("Mañosa"). appoint. This inherent conflict has spawned
On 22 December 1998, then President Joseph E. Estrada recurring controversies in the appointment of
appointed seven new trustees to the CCP Board for a term of CCP trustees every time a new President
four years to replace the Endriga group as well as two other assumes office.
incumbent trustees. The 7 NEW trustees were: In the present case, the incumbent President
(1) Armita B. Rufino - President, vice Baltazar N. Endriga; appointed the Endriga group as trustees, while
(2) Zenaida R. Tantoco - Member, vice Doreen Fernandez the remaining CCP trustees elected the same
(3) and 5 more others. Endriga group to the same positions. This has

Except for Tantoco, the Rufino group took their respective
oaths of office and assumed the performance of their duties
in early January 1999. On 6 January 1999, the Endriga group
filed a petition for quo warranto before this Court questioning
President Estrada's appointment of seven new members to the
CCP Board. The Endriga group alleged that under Section
6(b) of PD 15, vacancies in the CCP Board "shall be filled by
election by a vote of a majority of the trustees held at the next
regular meeting." In case "only one trustee survive[s], the
vacancies shall be filled by the surviving trustee acting in
consultation with the ranking officers of the [CCP]." They
claimed that it is only when the CCP Board is entirely vacant
may the President fill such vacancies, acting in consultation
with the ranking officers of the CCP.
The Endriga group asserted that when former President
Estrada appointed the Rufino group, only one seat was vacant
due to the expiration of Mañosa's term. The CCP Board then
had 10 incumbent trustees because of the appointment. The
Endriga group refused to accept that the CCP was under the
supervision and control of the President and cited Section 3
of PD 15, which states that the CCP “shall enjoy autonomy
of policy and operation”.
In their motion for reconsideration, the Rufino group asserted
that the law could only delegate to the CCP Board the power
to appoint officers lower in rank than the trustees of the
Board. The law may not validly confer on the CCP trustees
the authority to appoint or elect their fellow trustees, for the
latter would be officers of equal rank and not of lower
rank. Section 6(b) of PD 15 authorizing the CCP trustees to
elect their fellow trustees should be declared unconstitutional
being repugnant to Section 16, Article VII of the 1987
Constitution allowing the appointment only of “officers
lower in rank” than the appointing power.
Issue: Whether Section 6(b) of PD 15 is unconstitutional
considering that [it] is an invalid delegation of the
President's appointing power under the Constitution.
been the modus vivendi in filling vacancies in
the CCP Board, allowing the President to
appoint and the CCP Board to elect the
trustees. In effect, there are two appointing
powers over the same set of officers in the
Executive branch. Each appointing power
insists on exercising its own power, even if
the two powers are irreconcilable. The Court
must put an end to this recurring anomaly.
There is another constitutional impediment to
the implementation of Section 6(b) and (c) of
PD 15. Under our system of government, all
Executive departments, bureaus, and offices
are under the control of the President of the
Philippines under Section 17, Article VII of
the 1987 Constitution.
The CCP does not fall under the Legislative
or Judicial branches of government. The CCP
is also not one of the independent
constitutional bodies. Neither is the CCP a
quasi-judicial body nor a local government
unit. Thus, the CCP must fall under the
Executive branch. Under the Revised
Administrative Code of 1987, any agency
"not placed by law or order creating them
under any specific department" falls "under
the Office of the President.
Since the President exercises control over "all
the executive departments, bureaus, and
offices," the President necessarily exercises
control over the CCP which is an office in the
Executive branch. In mandating that the
President "shall have control of all executive
offices," Section 17, Article VII of the 1987
Constitution does not exempt any executive
office such as the CCP. The Legislature
cannot validly enact a law that puts a
government office in the Executive branch
outside the control of the President in the
guise of insulating that office from politics or
making it independent. If the office is part of
the Executive branch, it must remain subject
to the control of the President.
Section 6(b) and (c) of PD 15, which
authorizes the trustees of the CCP Board to fill
vacancies in the Board, runs afoul with the

D. 4th Sentence: 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
disapproved by the Commission on Appointments or until the next adjournment of the Congress.
13. Pimentel v. Ermita, GR 164978, October 13, 2005
Topic: ad interim vs. acting capacity
Facts & Issue
This case is a petition to declare
unconstitutional the appointments
issued by President Gloria Macapagal-
Arroyo (“President Arroyo”) through
Executive Secretary Eduardo R. Ermita
(“Secretary Ermita”) to respondents.
The following are the set of
appointments made by Pres. Arroyo:
On August 2004, Arroyo issued
appointments to respondents as acting
secretaries of their respective
departments.
Congress adjourned on 22 September
2004. On 23 September 2004, President
Arroyo issued ad interim appointments
to respondents as secretaries of the
departments to which they were
previously appointed in an acting
capacity.
Issue: Is President Arroyo’s
appointment of respondents as acting
secretaries without the consent of the
Commission on Appointments while
Congress is in session, constitutional?
President's power of control under Section 17,
Article VII of the 1987 Constitution.
Held
Yes. 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 legislature’s interference in the executive’s
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 President the
duty to appoint any particular person to an 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.
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 Secretary.”
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 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 President’s 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 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 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.
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.
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.

III. Aquino appointments made between Feb. 2, 1987 and July 27, 1987

Supplemental:
Bernas Commentary
Bernas Intent: p.443-454

Section 17. The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed.
 I. Power of control
14. Lacson-Magallanes v. Pano - 21 SCRA 395 [1967]
Topic: Presidential power to reverse decision of heads of executive positions; non-delegable is what the
President has to exercise in person
Facts & Issue Held
Jose Magallanes, permittee and actual occupant, Yes. The plaintiff claim that according to the Public
ceded his rights and interest to a portion of a Land Act the decisions of the Director of Lands as to
1,103-hectare pasture land (public land) in questions of facts shall be conclusive when approved
Tamlangon, Basalan, Davao to the plaintiff by the Secretary of Agriculture and Natural
corporation, Lacson-Magallanes Co, Inc. The Resources. And that it is controlling upon the courts
land ceded to plaintiff was officially released and the President. However, the President naturally
from the forest zone as pasture land and declared controls all of all executive departments. Control
agricultural land. Jose Paño and 19 other simply means the power of an officer to alter or
claimants applied for the purchase of 90 hectares modify or nullify or set aside what a subordinate
of the ceded land by Jose Magallanes. Plaintiff officer had done in the performance of his duties and
corporation in turn filed its own sales application to substitute the judgment of the former for that of the
covering the entire released area. Jose Paño latter.
protested against the plaintiff corporation and The plaintiff also submits that the decision of the
claims that they are actual occupants of the parts Executive secretary herein is an undue delegation of
thereof covered by their own sales application. power because it is the constitutional duty of the
The Director of Lands, following an investigation President to act personally upon the matter. The court
of the conflict, rendered a decision in favour of ruled that (1) there are constitutional powers which
the plaintiff corporation. A move to reconsider the President must exercise in person such as the
failed. The Secretary of Agriculture and Natural following:
Resources, on appeal by Jose Pano, affirmed the o Power to suspend the writ of habeas corpus, to
decision of the Director. The case was then proclaim martial law [Sec.10(2), Art VII, 1935
elevated to the President of the Philippines. Constitution]
Executive Secretary Juan Pajo, by authority of o To grant reprieves, commutations and pardons and
the President decided the controversy, remit fines and forfeitures [Sec.10(6)]
modified the decision of the Director of Lands Also, the President is not expected to perform in
as affirmed by the Secretary of Agriculture and person a he multifarious executive and administrative
Natural Resources, and : functions.
. (1) Declared that “it would be for the Under the constitutional setup, the Executive
public interest that appellants, who are Secretary, who acts for and in behalf and by
mostly landless farmers who depends on authority of the President, has an undisputed
the land for their existence, be allocated jurisdiction to affirm, modify or even reverse any
that portion on which they have made order that the Secretary of Agriculture and

improvements”; and 
 Natural Resources, including the Director of
. (2) Directed that the controverted land Lands, may issue.
(northern 
portion, Block I, LC Map Lastly, the plaintiff argues that the Executive
1749, Project No. 27, of Bansalan, Secretary is equal in rank to the other department head
Davao, with Lantian River as the as alter egos of the President. In this case, the Exec
dividing line) “ should be subdivided into Sec cannot intrude into the zone of action allocated to
lots of convenient sizes and allocated to another department head. The court ruled that the
actual occupants, without prejudice to the plaintiff lack appreciation to the fact that the
corporation’s right to reimbursement for Executive Secretary acts “by authority of the
the cost of surveying this portion.” 
 President” - his decision is that of the President’s.
Thus, the court must give full faith and credit to the
 Issue: May the Executive Secretary, acting by decision. Only the President may rightfully say
authority of the President, reverse a decision of that the Executive Secretary is not authorized to
the Director of Lands that had been affirmed by do so.
the Executive Secretary of Agriculture and
Natural Resources?

15. Ang-Angco v. Castillo - 9 SCRA 619 [1963]

Topic: distinguish President’s power over “acts” and “person” of appointee in classified service

Facts & Issue Held

Pepsi-Cola Far East Trade
Development Co., Inc had a problem
of withdrawing their commodities
consisting of 1,188 units of pepsi-
cola concentrates which were not
covered by any Central Bank release
certificate and were imported
without any dollar allocation or
remittance of foreign exchange.
After failing thus far in all their
attempts, the counsel of Pepsi-Cola
turned to Collector of Customs
Isidro Ang- Angco in an attempt to
secure from him the immediate
release of the concentrates. Mr. Ang-
Angco, seeing perhaps that the
importation did not carry any release
certificate from the Central Bank,
advised the counsel to try to secure
the necessary release certificate from
the No-Dollar Import Office that had
jurisdiction over the
No.
Section 64 (b) of the Revised Administrative Code
contains the power of the President
To remove officials from office conformably to law and to
declare vacant the offices held by such removed officials. For
disloyalty to the (United States) Republic of the Philippines,
the (Governor-General) President of the Philippines may at
any time remove a person from any position of trust or
authority under the Government of the (Philippine Islands)
Philippines.
"Conformably to law" is significant. It shows that the
President does not have blanket authority move any officer or
employee of the government but his power must still be
subject to the law that passed by the legislative body. Since
CSC has such law which governs action to be taken against
officers and employees in classified civil service it should be
then stated that the law is binding upon President.
Section (D) of the Revised Administrative Code
Power to appoint and remove. — The Department Head, the
recommendation of the chief of the Bureau or office
concerned, shall appoint all subordinate officers and
employees appointment is not expressly vested by law in the
(Governor-General) President of the Philippines, and may
remove or punish them, except as especially provided
otherwise, in accordance the Civil Service Law.

"In accordance with the Civil Service” is also significant. So

we may say that even granting for administrative purposes,
the President of the Philippines is considered as the
Department Head of the Civil Service Commission, his power
to remove is still subject to the Civil Service Act of 1959.
In Hebron v. Reyes it was stated that "the [President has] the
power of an officer to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of
the latter..."to distinguish it from the power of general
supervision over municipal government, but the decision
does not go to the extent of including the power to remove an
officer or employee in the executive department. (Power
over the acts and not the person himself).

President's control over the executive department only refers

to matters of general policy. The term "policy" means a
settled or definite course or method adopted and followed by
a government, body, or individual, and it cannot be said that
the removal of an inferior officer comes within the meaning
of control over a specific policy of government.

Thus the CSC is given the power over the President primarily
to give stability to the tenure of office of those who belong to
the classified service. To hold that civil service officials hold
their office at the will of the appointing power subject to
removal or forced transfer at any time, would demoralize and
undermine and eventually destroy the whole Civil Service
System and structure. System will devolve Jacksonian Spoils
System under which a victorious Chief Executive.