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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANEL !. FGUEROA, ROGELO T. PALO, DOMNGO A. JADLOC, CARLTO T. CRU" #n$
MANUEL P. RE!ES, petitioner,
vs.
%ON. FRAN&LN M. DRLON, E'e(u)*+e Se(,e)#,-, #n$ RC%ARD J. GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

BELLOSLLO, J.:
The constitutionality of Sec. !, par. "d#, of R.A. $%%$,
1
other&ise 'no&n as the (Bases Conversion
and )evelop*ent Act of ++%,( under &hich respondent Mayor Richard ,. -ordon of .lon/apo City
&as appointed Chair*an and Chief E0ecutive .fficer of the Subic Bay Metropolitan Authority "SBMA#,
is challen/ed in this ori/inal petition &ith prayer for prohibition, preli*inary in1unction and te*porary
restrainin/ order (to prevent useless and unnecessary e0penditures of public funds by &ay of salaries
and other operational e0penses attached to the office . . . .(
2
Para/raph "d# reads 2
"d# Chairman administrator 2 The President shall appoint a professional *ana/er as
ad*inistrator of the Subic Authority &ith a co*pensation to be deter*ined by the
Board sub1ect to the approval of the Secretary of Bud/et, &ho shall be the ex oficio
chair*an of the Board and &ho shall serve as the chief e0ecutive officer of the Subic
Authority3 Proided, ho!eer, "hat for the first #ear of its operations from the effectiit#
of this Act, the ma#or of the Cit# of $longapo shall %e appointed as the chairman and
chief executie officer of the Su%ic Authorit# "e*phasis supplied#.
Petitioners, &ho clai* to be ta0payers, e*ployees of the 4.S. 5acility at the Subic, 6a*bales, and
officers and *e*bers of the 5ilipino Civilian E*ployees Association in 4.S. 5acilities in the
Philippines, *aintain that the proiso in par. "d# of Sec. ! herein7above 8uoted in italics infrin/es on
the follo&in/ constitutional and statutory provisions3 "a# Sec. $, first par., Art. 9:7B, of the Constitution,
&hich states that (&n'o electie official shall %e eligi%le for appointment or designation in an# capacit#
to an# pu%lic officer or position during his tenure,(
3
because the City Mayor of .lon/apo City is an
elective official and the sub1ect posts are public offices; "b# Sec. <, Art. =99, of the Constitution, &hich
provides that (>t?he President shall . . . . appoint all other officers of the -overn*ent &hose
appoint*ents are not other&ise proided for by la&, and those &ho* he *ay be authori@ed by la& to
appoint(,
4
since it &as Con/ress throu/h the 8uestioned proiso and not the President &ho appointed
the Mayor to the sub1ect posts;
.
and, "c# Sec. %<, par. "/#, of the .*nibus Election Code, &hich
says3
Sec. %<. Prohi%ited Acts. 2 The follo&in/ shall be /uilty of an election offense3 . . . "/#
Appoint*ent of ne& e*ployees, creation of ne& position, pro*otion, or /ivin/ salary
increases. 2 )urin/ the period of forty7five days before a re/ular election and thirty
days before a special election, "# any head, official or appointin/ officer of a
/overn*ent office, a/ency or instru*entality, &hether national or local, includin/
/overn*ent7o&ned or controlled corporations, &ho appoints or hires any ne&
e*ployee, &hether provisional, te*porary or casual, or creates and fills any ne&
position, e0cept upon prior authority of the Co**ission. The Co**ission shall not
/rant the authority sou/ht unless it is satisfied that the position to be filled is essential
to the proper functionin/ of the office or a/ency concerned, and that the position shall
not be filled in a *anner that *ay influence the election. As an e0ception to the
fore/oin/ provisions, a ne& e*ployee *ay be appointed in case of ur/ent need3
Proided, ho!eer, That notice of the appoint*ent shall be /iven to the Co**ission
&ithin three days fro* the date of the appoint*ent. Any appoint*ent or hirin/ in
violation of this provision shall be null and void. "%# Any /overn*ent official &ho
pro*otes, or /ives any increase of salary or re*uneration or privile/e to any
/overn*ent official or e*ployee, includin/ those in /overn*ent7o&ned or controlled
corporations . . . .
1
for the reason that the appoint*ent of respondent -ordon to the sub1ect posts *ade by respondent
E0ecutive Secretary on ! April ++% &as &ithin the prohibited AB7day period prior to the May ++%
Elections.
The principal 8uestion is &hether the proiso in Sec. !, par. "d#, of R.A. $%%$ &hich states,
(Proided, ho!eer, "hat for the first #ear of its operations from the effectiit# of this Act, the ma#or of
the Cit# of $longapo shall %e appointed as the chairman and chief executie officer of the Su%ic
Authorit#,( violates the constitutional proscription a/ainst appoint*ent or desi/nation of elective
officials to other /overn*ent posts.
9n full, Sec. $ of Art. 9:7B of the Constitution provides3
No elective official shall be eli/ible for appoint*ent or desi/nation in any capacity to
any public office or position durin/ his tenure.
4nless other&ise allo&ed by la& or by the pri*ary functions of his position, no
appointive official shall hold any other office or e*ploy*ent in the -overn*ent or any
subdivision, a/ency or instru*entality thereof, includin/ /overn*ent7o&ned or
controlled corporations or their subsidiaries.
The section e0presses the policy a/ainst the concentration of several public positions in one person,
so that a public officer or e*ployee *ay serve full7ti*e &ith dedication and thus be efficient in the
delivery of public services. 9t is an affir*ation that a public office is a full7ti*e 1ob. Cence, a public
officer or e*ployee, li'e the head of an e0ecutive depart*ent described in Ciil (i%erties )nion .
Executie Secretar#, *.+. ,o. -.-/0, and Anti1*raft (eague of the Philippines, Inc. . Philip Ella C.
Juico, as Secretar# of Agrarian +eform, -.R. No. D!DB,
/
(. . . . should be allo&ed to attend to his
duties and responsibilities &ithout the distraction of other /overn*ental duties or e*ploy*ent. Ce
should be precluded fro* dissipatin/ his efforts, attention and ener/y a*on/ too *any positions of
responsibility, &hich *ay result in hapha@ardness and inefficiency . . . .(
Particularly as re/ards the first para/raph of Sec. $, ("t#he basic idea really is to prevent a situation
&here a local elective official &ill &or' for his appoint*ent in an e0ecutive position in /overn*ent, and
thus ne/lect his constituents . . . .(
7
9n the case before us, the sub1ect proiso directs the President to appoint an elective official, i.e., the
Mayor of .lon/apo City, to other /overn*ent posts "as Chair*an of the Board and Chief E0ecutive
.fficer of SBMA#. Since this is precisely &hat the constitutional proscription see's to prevent, it needs
no stretchin/ of the i*a/ination to conclude that the proiso contravenes Sec. $, first par., Art. 9:7B, of
the Constitution. Cere, the fact that the e0pertise of an elective official *ay be *ost beneficial to the
hi/her interest of the body politic is of no *o*ent.
9t is ar/ued that Sec. +A of the Eocal -overn*ent Code "E-C# per*its the appoint*ent of a local
elective official to another post if so allo&ed by la& or by the pri*ary functions of his office.
0
But, the
contention is fallacious. Section +A of the E-C is not deter*inative of the constitutionality of Sec. !,
par. "d#, of R.A. $%%$, for no le/islative act can prevail over the funda*ental la& of the land.
Moreover, since the constitutionality of Sec. +A of E-C is not the issue here nor is that section sou/ht
to be declared unconstitutional, &e need not rule on its validity. Neither can &e invo'e a practice
other&ise unconstitutional as authority for its validity.
9n any case, the vie& that an elective official *ay be appointed to another post if allo&ed by la& or by
the pri*ary functions of his office, i/nores the clear7cut difference in the &ordin/ of the t&o "%#
para/raphs of Sec. $, Art.
9:7B, of the Constitution. Fhile the second para/raph authori@es holdin/ of *ultiple offices by an
appointie official &hen allo&ed by la& or by the pri*ary functions of his position, the first para/raph
appears to be *ore strin/ent by not providin/ any e0ception to the rule a/ainst appoint*ent or
desi/nation of an electie official to the /overn*ent post, e0cept as are particularly reco/ni@ed in the
Constitution itself, e./., the President as head of the econo*ic and plannin/ a/ency;
9
the =ice7
President, &ho *ay be appointed Me*ber of the Cabinet;
10
and, a *e*ber of Con/ress &ho *ay be
desi/nated ex officio *e*ber of the ,udicial and Bar Council.
11
The distinction bet&een the first and second para/raphs of Sec. $, Art. 9:7B, &as not accidental &hen
dra&n, and not &ithout reason. 9t &as purposely sou/ht by the drafters of the Constitution as sho&n in
their deliberation, thus 2
2
MR. M.NS.). 9n other &ords, &hat then Co**issioner is sayin/, Mr. Presidin/
.fficer, is that the prohibition is *ore strict &ith respect to elective officials, because in
the case of appointive officials, there *ay be a la& that &ill allo& the* to hold other
positions.
MR. 5.6. Ges, 9 su//est &e *a'e that difference, because in the case of appointive
officials, there &ill be certain situations &here the la& should allo& the* to hold so*e
other positions.
12
The distinction bein/ clear, the e0e*ption allo&ed to appointive officials in the second para/raph
cannot be e0tended to elective officials &ho are /overned by the first para/raph.
9t is further ar/ued that the SBMA posts are *erely ex officio to the position of Mayor of .lon/apo
City, hence, an e0cepted circu*stance, citin/ Ciil (i%erties )nion . Executie Secretar#,
13
&here &e
stated that the prohibition a/ainst the holdin/ of any other office or e*ploy*ent by the President,
=ice7President, Me*bers of the Cabinet, and their deputies or assistants durin/ their tenure, as
proided in Sec. !, Art. =99, of the Constitution, does not co*prehend additional duties and functions
re2uired %# the primar# functions of the officials concerned, !ho are to perform them in an ex officio
capacit# as proided %# la!, !ithout receiing an# additional compensation therefor.
This ar/u*ent is apparently based on a &ron/ pre*ise. Con/ress did not conte*plate *a'in/ the
sub1ect SBMA posts as ex officio or auto*atically attached to the .ffice of the Mayor of .lon/apo City
&ithout need of appoint*ent. The phrase (shall be appointed( un8uestionably sho&s the intent to
*a'e the SBMA posts appointive and not *erely ad1unct to the post of Mayor of .lon/apo City. Cad it
been the le/islative intent to *a'e the sub1ect positions ex officio, Con/ress &ould have, at least,
avoided the &ord (appointed( and, instead, (ex officio( &ould have been used.
14
Even in the Senate deliberations, the Senators &ere fully a&are that sub1ect proiso *ay contravene
Sec. $, first par., Art. 9:7B, but they nevertheless passed the bill and decided to have the controversy
resolved by the courts. 9ndeed, the Senators &ould not have been concerned &ith the effects of Sec.
$, first par., had they considered the SBMA posts as ex officio.
Co/ni@ant of the co*plication that *ay arise fro* the &ay the sub1ect proiso &as stated, Senator
Rene Sa/uisa/ re*ar'ed that (if the Conference Co**ittee 1ust said (the Mayor shall be the
Chair*an( then that should foreclose the issue. 9t is a le/islative choice.(
1.
The Senator too' a vie&
that the constitutional proscription a/ainst appoint*ent of elective officials *ay have been
sidestepped if Con/ress attached the SBMA posts to the Mayor of .lon/apo City instead of directin/
the President to appoint hi* to the post. Fithout passin/ upon this vie& of Senator Sa/uisa/, it
suffices to state that Con/ress intended the posts to be appointive, thus nibblin/ in the bud the
ar/u*ent that they are ex officio.
The analo/y &ith the position of Chair*an of the Metro Manila Authority *ade by respondents cannot
be applied to uphold the constitutionality of the challen/ed proiso since it is not put in issue in the
present case. 9n the sa*e vein, the ar/u*ent that if no elective official *ay be appointed or
desi/nated to another post then Sec. D, Art. 9:7B, of the Constitution allo&in/ hi* to receive double
co*pensation
1/
&ould be useless, is non se2uitur since Sec. D does not affect the constitutionality of
the sub1ect proiso. 9n any case, the =ice7President for e0a*ple, an elective official &ho *ay be
appointed to a cabinet post under Sec. !, Art. =99, *ay receive the co*pensation attached to the
cabinet position if specifically authori@ed by la&.
Petitioners also assail the le/islative encroach*ent on the appointin/ authority of the President.
Section !, par. "d#, itself vests in the President the po&er to appoint the Chair*an of the Board and
the Chief E0ecutive .fficer of SBMA, althou/h he really has no choice under the la& but to appoint
the Mayor of .lon/apo City.
As *ay be defined, an (appoint*ent( is (>t?he desi/nation of a person, by the person or persons
havin/ authority therefor, to dischar/e the duties of so*e office or trust,(
17
or (>t?he selection or
desi/nation of a person, by the person or persons havin/ authority therefor, to fill an office or public
function and dischar/e the duties of the sa*e.
10
9n his treatise, Philippine Political
(a!,
19
Senior Associate ,ustice 9sa/ani A. Cru@ defines appoint*ent as (the selection, by the
authority vested &ith the po&er, of an individual &ho is to e0ercise the functions of a /iven office.(
Considerin/ that appoint*ent calls for a selection, the appointin/ po&er necessarily e0ercises a
discretion. Accordin/ to Foodbury, ,.,
20
(the choice of a person to fill an office constitutes the
3
essence of his appoint*ent,(
21
and Mr. ,ustice Malcol* adds that an (>a?ppoint*ent to office is
intrinsically an e0ecutive act involvin/ the e0ercise of discretion.(
22
9n Pamantasan ng (ungsod ng
Ma#nila . Intermediate Appellate Court
23
&e held3
The po&er to appoint is, in essence, discretionary. The appointin/ po&er has the ri/ht
of choice &hich he *ay e0ercise freely accordin/ to his 1ud/*ent, decidin/ for hi*self
&ho is best 8ualified a*on/ those &ho have the necessary 8ualifications and
eli/ibilities. 9t is a prero/ative of the appointin/ po&er . . . .
9ndeed, the po&er of choice is the heart of the po&er to appoint. Appoint*ent involves an e0ercise of
discretion of &ho* to appoint; it is not a *inisterial act of issuin/ appoint*ent papers to the
appointee. 9n other &ords, the choice of the appointee is a funda*ental co*ponent of the appointin/
po&er.
Cence, &hen Con/ress clothes the President &ith the po&er to appoint an officer, it "Con/ress#
cannot at the sa*e ti*e li*it the choice of the President to only one candidate. .nce the po&er of
appoint*ent is conferred on the President, such confer*ent necessarily carries the discretion of
&ho* to appoint. Even on the prete0t of prescribin/ the 8ualifications of the officer, Con/ress *ay not
abuse such po&er as to divest the appointin/ authority, directly or indirectly, of his discretion to pic'
his o&n choice. Conse8uently, &hen the 8ualifications prescribed by Con/ress can only be *et by
one individual, such enact*ent effectively eli*inates the discretion of the appointin/ po&er to choose
and constitutes an irre/ular restriction on the po&er of appoint*ent.
24
9n the case at bar, &hile Con/ress &illed that the sub1ect posts be filled &ith a presidential appointee
for the first year of its operations fro* the effectivity of R.A. $%%$, the proiso nevertheless li*its the
appointin/ authority to only one eli/ible, i.e., the incu*bent Mayor of .lon/apo City. Since only one
can 8ualify for the posts in 8uestion, the President is precluded fro* e0ercisin/ his discretion to
choose &ho* to appoint. Such supposed po&er of appoint*ent, sans the essential ele*ent of choice,
is no po&er at all and /oes a/ainst the very nature itself of appoint*ent.
Fhile it *ay be vie&ed that the proiso *erely sets the 8ualifications of the officer durin/ the first year
of operations of SBMA, i.e., he *ust be the Mayor of .lon/apo City, it is *anifestly an abuse of
con/ressional authority to prescribe 8ualifications &here only one, and no other, can 8ualify.
Accordin/ly, &hile the confer*ent of the appointin/ po&er on the President is a perfectly valid
le/islative act, the proiso li*itin/ his choice to one is certainly an encroach*ent on his prero/ative.
Since the ineli/ibility of an elective official for appoint*ent re*ains all throu/hout his tenure or durin/
his incu*bency, he *ay ho&ever resi/n first fro* his elective post to cast off the constitutionally7
attached dis8ualification before he *ay be considered fit for appoint*ent. The deliberation in the
Constitutional Co**ission is enli/htenin/3
MR. )A=9)E. .n Section A, pa/e !, line D, 9 propose the substitution of the &ord (ter*(
&ith TEN4RE.
MR. 5.6. The effect of the proposed a*end*ent is to *a'e possible for one to resi/n
fro* his position.
MR. )A=9)E. Ges, &e should allo& that prero/ative.
MR. 5.6. Resi/n fro* his position to accept an e0ecutive position.
MR. )A=9)E. Besides, it *ay turn out in a /iven case that because of, say, incapacity,
he *ay leave the service, but if he is prohibited fro* bein/ appointed &ithin the ter*
for &hich he &as elected, &e *ay be deprivin/ the /overn*ent of the needed
e0pertise of an individual.
2.
Conse8uently, as lon/ as he is an incu*bent, an elective official re*ains ineli/ible for appoint*ent to
another public office.
Fhere, as in the case of respondent -ordon, an incu*bent elective official &as, not&ithstandin/ his
ineli/ibility, appointed to other /overn*ent posts, he does not auto*atically forfeit his elective office
nor re*ove his ineli/ibility i*posed by the Constitution. .n the contrary, since an incu*bent elective
official is not eli/ible to the appointive position, his appoint*ent or desi/nation thereto cannot be valid
in vie& of his dis8ualification or lac' of eli/ibility. This provision should not be confused &ith Sec. !,
4
Art. =9, of the Constitution &here ("n#o Senator or Me*ber of the Couse of Representatives *ay hold
any other office or e*ploy*ent in the -overn*ent . . . durin/ his ter* &ithout forfeitin/ his seat . . . .(
The difference bet&een the t&o provisions is si/nificant in the sense that incu*bent national
le/islators lose their elective posts only after they have been appointed to another /overn*ent office,
&hile other incu*bent elective officials *ust first resi/n their posts before they can be appointed, thus
runnin/ the ris' of losin/ the elective post as &ell as not bein/ appointed to the other post. 9t is
therefore clear that ineli/ibility is not directly related &ith forfeiture of office. (. . . . The effect is 8uite
different &here it is e0pressly proided by la& that a person holdin/ one office shall be ineli/ible to
another. Such a provision is held to incapacitate the incu*bent of an office fro* acceptin/ or holdin/
a second office "State e0 rel. =an Ant&erp v Co/an, %D! Ala. AAB, %D So %d %BD; McFillia*s v Neal,
!H -a $!!, < SE $%# and to render his election or appoint*ent to the latter office void "State e0
rel. Childs v Sutton, <! Minn A$, <B NF %<%. Annotation3 AH AER +AB# or voidable "Bas'in v State,
H$ .'la %$%, %!% p !DD, AH AER +A#.(
2/
(Fhere the constitution, or statutes declare that persons
holdin/ one office shall be ineli/ible for election or appoint*ent to another office, either /enerally or of
a certain 'ind, the prohibition has been held to incapacitate the incu*bent of the first office to hold the
second so that any atte*pt to hold the second is void "Ala. 2 State e0 rel. =an Ant&erp v. Co/an, %D
So %d %BD, %D! Ala AAB#.(
27
As incu*bent elective official, respondent -ordon is ineli/ible for appoint*ent to the position of
Chair*an of the Board and Chief E0ecutive of SBMA; hence, his appoint*ent thereto pursuant to a
le/islative act that contravenes the Constitution cannot be sustained. Ce ho&ever re*ains Mayor of
.lon/apo City, and his acts as SBMA official are not necessarily null and void; he *ay be considered
a de facto officer, (one &hose acts, thou/h not those of a la&ful officer, the la&, upon principles of
policy and 1ustice, &ill hold valid so far as they involve the interest of the public and third persons,
&here the duties of the office &ere e0ercised . . . . under color of a 'no&n election or appoint*ent,
void because the officer !as not eligi%le, or because there &as a &ant of po&er in the electin/ or
appointin/ body, or by reason of so*e defect or irre/ularity in its e0ercise, such ineli/ibility, &ant of
po&er or defect bein/ un'no&n to the public . . . . >or? under color of an election, or appointment, %# or
pursuant to a pu%lic unconstitutional la!, %efore the same is ad3udged to %e such "State vs. Carroll, !D
Conn., A++; Filco0 vs. S*ith, B Fendell >N.G.?, %!; % A*. )ec., %!; SheehanIs Case, %% Mass,
AAB, %! A*. Rep., !%!#.(
20
Confor*ably &ith our rulin/ in Ciil (i%erties )nion, any and all per diems, allo&ances and other
e*olu*ents &hich *ay have been received by respondent -ordon pursuant to his appoint*ent *ay
be retained by hi*.
The ille/ality of his appoint*ent to the SBMA posts bein/ no& evident, other *atters affectin/ the
le/ality of the 8uestioned proiso as &ell as the appoint*ent of said respondent *ade pursuant
thereto need no lon/er be discussed.
9n thus concludin/ as &e do, &e can only share the la*ent of Sen. Sotero Eaurel &hich he e0pressed
in the floor deliberations of S.B. <AD, precursor of R.A. $%%$, &hen he articulated 2
. . . . "*uch# as &e &ould li'e to have the present Mayor of .lon/apo City as the Chief
E0ecutive of this Authority that &e are creatin/; "*uch# as 9, *yself, &ould li'e to
because 9 'no& the capacity, inte/rity, industry and dedication of Mayor -ordon;
"*uch# as &e &ould li'e to /ive hi* this terrific, burdenso*e and heavy responsibility,
&e cannot do it because of the constitutional prohibition &hich is very clear. 9t says3 (No
elective official shall be appointed or desi/nated to another position in any capacity.(
29
5or, indeed, (a Constitution *ust be fir* and i**ovable, li'e a *ountain a*idst the strife of stor*s or
a roc' in the ocean a*idst the ra/in/ of the &aves.(
30
.ne of the characteristics of the Constitution is
per*anence, i.e., (its capacity to resist capricious or &hi*sical chan/e dictated not by le/iti*ate
needs but only by passin/ fancies, te*porary passions or occasional infatuations of the people &ith
ideas or personalities . . . . Such a Constitution is not li'ely to be easily ta*pered &ith to suit political
e0pediency, personal a*bitions or ill7advised a/itation for chan/e.(
31
Er/o, under the Constitution, Mayor -ordon has a choice. Fe have no choice.
FCERE5.RE, the proiso in par. "d#, Sec. !, of R.A. $%%$, &hich states3 (. . . Proided, ho!eer,
"hat for the first #ear of its operations from the effectiit# of this Act, the Ma#or of the Cit# of
$longapo shall %e appointed as the chairman and chief executie officer of the Su%ic Authorit#,( is
declared unconstitutional; conse8uently, the appoint*ent pursuant thereto of the Mayor of .lon/apo
City, respondent Richard ,. -ordon, is I,VA(I4, hence N4EE and =.9).
5
Co&ever, all per diems, allo&ances and other e*olu*ents received by respondent -ordon, if any, as
such Chair*an and Chief E0ecutive .fficer *ay be retained by hi*, and all acts other&ise le/iti*ate
done by hi* in the e0ercise of his authority as officer de facto of SBMA are hereby 4PCEE).
S. .R)ERE).
,arasa, C.J., Cru5, Feliciano, 6idin, *ri7o1A2uino, +egalado, 4aide, Jr., +omero, ,ocon, Melo and
8uiason, JJ., concur.
Padilla, ,., is on leave.
6