Executive Dept.

: President - Power of Appointment

GR. No. 131429 (Aug. 4, 1999)
Bermudez v. Torres
Vitug, J.
Summarized by Sophia Sy
This petition for review on certiorari assails the validity and legality of the
appointment of Conrado Quiaoit to the post of Provincial Prosecutor of Tarlac by then
President Ramos for lacking recommendation by the Secretary of Justice as prescribed
under the Revised Administrative Code of 1987. Court rules that such recommendation
is merely directory. The power to appoint is upon the Presidents discretion. Petition was
denied.
IMPORTANT PEOPLE
Oscar Bermudez (OIC Office of the Provincial Prosecutor, petitioner)
Conrado Quiaoit (respondent)
FACTS
1. The Office of the Provincial Prosecutor of Tarlac was vacated. Bermudez, the
First Assistant Provincial Prosecutor of Tarlac and OIC-Provincial Prosecutor,
was recommended by Justice Secretary Teofisto Guingona, Jr. for the
position.
2. June 30, 1997- Quiaoit (who was supported by then Representative Jose Yap
of the 2nd District of Tarlac) was appointed by President Ramos to the office
3. July 21, 1997 Quiaoit took his oath.and on July 23, assumed office
4. Bermudez refused to vacate the Office of Provincial Prosecutor claiming that
the original copy of Quiaoits appointment had not yet been released by the
Secretary of Justice. Quiaoit, nonetheless, performed his functions and duties
and had since been regularly receiving the salary and other emoluments of
the office.
5. Sept. 17 - Justice Secretary Guingona summoned Bermudez and Quiaoit and
ordered Bermudez to turn-over the office to Quiaoit.
6. The original copy of Quiaoits appointment was then transmitted to him. As
directed, he again so assumed office on Oct 16.
7. Oct. 10 - Bermudez, et. al.then filed with Tarlac RTC a petition for prohibition
and/or injunction, and mandamus challenging the appointment of Quiaoit
primarily on the ground that the appointment lacks the recommendation of the
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Secretary of Justice prescribed under the Revised Administrative Code of

1987. Petition was dismissed. MR denied. Hence, this petition.
ISSUE with HOLDING
1. W/N the absence of a recommendation of the Secretary of Justice to the
President can be held fatal to the appointment of respondent Quiaoit? NO.
Section 9, Chapter II, Title III, Book IV, of the Revised Administrative
Code: All provincial and city prosecutors and their assistants shall be
appointed by the President upon the recommendation of the Secretary.
Petitioners: Appointment requires a prior recommendation of the Secretary
of Justice.
- Cites San Juan vs. CSC where it was held that the DBM may only
recommend from the list of recommendees nominated by the Governor.
- Likens said provision to Sec. 1 of EO112: where budget officers are to be
appointed upon recommendation

of the local chief executive concerned.

Court: General rule: Statute is directory if no consequential rights or liabilities
depend on it/ no injury can result from ignoring it, and the legislative purpose
can be accomplished in a manner other than that prescribed and the same
results can be obtained
- PLM v. IAC, Flores v. Drilon: The power to appoint is, in essence,
discretionary.
- Constitution conferred the President the power to appoint a subordinate
officer = President has the authority to alter or modify, or even nullify or set
aside, what a subordinate officer has done in the performance of his duties,
as well as to substitute the judgment of the latter, as and when the former
deems it to be appropriate.

- The phrase upon recommendation of the Secretary should be interpreted to

be directory and not binding or obligatory upon the party to whom it is made.
The President, could very well disregard the action of the departments,
bureaus or offices and cannot be said as having acted beyond the scope of
his authority.
- The San Juan case is not entirely applicable since it dealt with favoring the
constitutional mandate of local autonomy in a situation where there is sharing
of power involved between the DBM secretary and the Governor. There is no
sharing of power in the present case, since the recommendation of the
Secretary of Justice and the appointment of the President are acts of the
Executive Department itself, deemed for all intents and purposes as being
merely an extension of the personality of the President.
DISPOSITIVE PORTION
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Petition is DENIED.
DOCTRINE
By virtue of the constitutionally vested power of appointment to the President, he has
the power to assume directly the functions of an executive department, bureau and
office and can interfere in the exercise of discretion of officials under him or altogether
ignore their recommendations.
RELEVANCE TO THE LESSON
Presidents power of appointment (Art.VII, Sec. 16)
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.
OTHER NOTES