G.R. No.
149036 April 2, 2002 appointments for confirmation to the Commission on
MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., VELMA J. CINCO, and
GIDEON C. DE GUZMAN in his capacity as Officer-In-
Charge, Finance Services Department of the
Commission on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for
the issuance of a writ of preliminary injunction and a temporary
restraining order under Rule 65 of the 1997 Rules of Civil
Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner"
for brevity) questions the constitutionality of the appointment
and the right to hold office of the following: (1) Alfredo L.
Benipayo ("Benipayo" for brevity) as Chairman of the
Commission on Elections ("COMELEC" for brevity); and (2)
Resurreccion Z. Borra ("Borra" for brevity) and Florentino A.
Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners.
Petitioner also questions the legality of the appointment of
Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the
COMELECs Education and Information Department ("EID" for
brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed
petitioner as "Acting Director IV" of the EID. On February 15,
2000, then Chairperson Harriet O. Demetriou renewed the
appointment of petitioner as Director IV of EID in a "Temporary"
capacity. On February 15, 2001, Commissioner Rufino S.B.
Javier renewed again the appointment of petitioner to the same
position in a "Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo
appointed, ad interim, Benipayo as COMELEC Chairman,3and
Borra4 and Tuason5 as COMELEC Commissioners, each for a term
of seven years and all expiring on February 2, 2008. Benipayo
took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office
and assumed their positions as COMELEC Commissioners. The
Office of the President submitted to the Commission on
Appointments on May 22, 2001 the ad interim appointments of
Benipayo, Borra and Tuason for confirmation.6 However, the
Commission on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim
appointments of Benipayo, Borra and Tuason to the same
positions and for the same term of seven years, expiring on
February 2, 2008.7 They took their oaths of office for a second
time. The Office of the President transmitted on June 5, 2001
their appointments to the Commission on Appointments for
confirmation.8
Congress adjourned before the Commission on Appointments
could act on their appointments. Thus, on June 8, 2001,
President Macapagal Arroyo renewed again the ad interim
appointments of Benipayo, Borra and Tuason to the same
positions.9 The Office of the President submitted their
Appointments.10 They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 200111 addressed to petitioner as
Director IV of the EID and to Cinco as Director III also of the
EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC EID
Commissioner-in-Charge Mehol K. Sadain objected to
petitioners reassignment in a Memorandum dated April 14,
200112 addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayos failure to consult
the Commissioner-in-Charge of the EID in the reassignment of
petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider
her relief as Director IV of the EID and her reassignment to the
Law Department.13 Petitioner cited Civil Service Commission
Memorandum Circular No. 7 dated April 10, 2001, reminding
heads of government offices that "transfer and detail of
employees are prohibited during the election period beginning
January 2 until June 13, 2001." Benipayo denied her request for
reconsideration on April 18, 2001,14 citing COMELEC Resolution
No. 3300 dated November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections by virtue of
the powers conferred upon it by the Constitution, the Omnibus
Election Code and other election laws, as an exception to the
foregoing prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill new positions
and transfer or reassign its personnel, when necessary in the
effective performance of its mandated functions during the
prohibited period, provided that the changes in the assignment
of its field personnel within the thirty-day period before election
day shall be effected after due notice and hearing."
Petitioner appealed the denial of her request for reconsideration
to the COMELEC en banc in a Memorandum dated April 23,
2001.15 Petitioner also filed an administrative and criminal
complaint16 with the Law Department17 against Benipayo,
alleging that her reassignment violated Section 261 (h) of the
Omnibus Election Code, COMELEC Resolution No. 3258, Civil
Service Memorandum Circular No. 07, s. 001, and other
pertinent administrative and civil service laws, rules and
regulations.
During the pendency of her complaint before the Law
Department, petitioner filed the instant petition questioning the
appointment and the right to remain in office of Benipayo, Borra
and Tuason, as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments
of Benipayo, Borra and Tuason violate the constitutional
provisions on the independence of the COMELEC, as well as on
the prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner also
assails as illegal her removal as Director IV of the EID and her
reassignment to the Law Department. Simultaneously,
petitioner challenges the designation of Cinco as Officer-in-
Charge of the EID. Petitioner, moreover, questions the legality
of the disbursements made by COMELEC Finance Services
Department Officer-in-Charge Gideon C. De Guzman to
Benipayo, Borra and Tuason by way of salaries and other
emoluments.
In the meantime, on September 6, 2001, President Macapagal
Arroyo renewed once again the ad interimappointments of
Benipayo as COMELEC Chairman and Borra and Tuason as
Commissioners, respectively, for a term of seven years expiring
on February 2, 2008.18 They all took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the
requirements before this Court may exercise its power of judicial
review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra
and Tuason on the basis of the ad interimappointments issued
by the President amounts to a temporary appointment
prohibited by Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first
assumption of office by Benipayo, Borra and Tuason are legal,
whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate
the prohibition on reappointment under Section 1 (2), Article IX-
C of the Constitution;
4. Whether or not Benipayos removal of petitioner from her
position as Director IV of the EID and her reassignment to the
Law Department is illegal and without authority, having been
done without the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs
Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco, is
acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four
requisites before this Court may exercise its power of judicial
review in constitutional cases. Out of respect for the acts of the
Executive department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued by the
President to Benipayo, Borra and Tuason unless all the four
requisites are present. These are: (1) the existence of an actual
and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the
exercise of the judicial review is pleaded at the earliest
opportunity; and (4) the constitutional issue is the lis mota of
the case.19 Respondents argue that the second, third and fourth
requisites are absent in this case. Respondents maintain that
petitioner does not have a personal and substantial interest in
the case because she has not sustained a direct injury as a result
of the ad interim appointments of Benipayo, Borra and Tuason
and their assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of the
positions assumed by Benipayo, Borra or Tuason. Neither does
petitioner claim to be directly injured by the appointments of
these three respondents.
Respondents also contend that petitioner failed to question the
constitutionality of the ad interim appointments at the earliest
opportunity. Petitioner filed the petition only on August 3, 2001
despite the fact that the ad interimappointments of Benipayo,
Borra and Tuason were issued as early as March 22, 2001.
Moreover, the petition was filed after the third time that these
three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality
of petitioners reassignment from the EID to the Law
Department. Consequently, the constitutionality of the ad
interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was
Acting Director, to the Law Department, where she was placed
on detail service.20 Respondents claim that the reassignment
was "pursuant to x x x Benipayos authority as Chairman of the
Commission on Elections, and as the Commissions Chief
Executive Officer."21 Evidently, respondents anchor the legality
of petitioners reassignment on Benipayos authority as
Chairman of the COMELEC. The real issue then turns on whether
or not Benipayo is the lawful Chairman of the COMELEC. Even if
petitioner is only an Acting Director of the EID, her reassignment
is without legal basis if Benipayo is not the lawful COMELEC
Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman
because he assumed office in accordance with the Constitution,
then petitioners reassignment is legal and she has no cause to
complain provided the reassignment is in accordance with the
Civil Service Law. Clearly, petitioner has a personal and material
stake in the resolution of the constitutionality of Benipayos
assumption of office. Petitioners personal and substantial injury,
if Benipayo is not the lawful COMELEC Chairman, clothes her
with the requisite locus standi to raise the constitutional issue in
this petition.
Respondents harp on petitioners belated act of questioning the
constitutionality of the ad interim appointments of Benipayo,
Borra and Tuason. Petitioner filed the instant petition only on
August 3, 2001, when the first ad interimappointments were
issued as early as March 22, 2001. However, it is not the date
of filing of the petition that determines whether the
constitutional issue was raised at the earliest opportunity. The
earliest opportunity to raise a constitutional issue is to raise it in
the pleadings before a competent court that can resolve the
same, such that, "if it is not raised in the pleadings, it cannot be
considered at the trial, and, if not considered at the trial, it
cannot be considered on appeal."22 Petitioner questioned the
constitutionality of the ad interim appointments of Benipayo,
Borra and Tuason when she filed her petition before this Court,
which is the earliest opportunity for pleading the constitutional
issue before a competent body. Furthermore, this Court may
determine, in the exercise of sound discretion, the time when a
constitutional issue may be passed upon.23 There is no doubt
petitioner raised the constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the
constitutionality of Benipayos ad interimappointment and
assumption of office. Unless the constitutionality of Benipayos
ad interim appointment and assumption of office is resolved, the
legality of petitioners reassignment from the EID to the Law
Department cannot be determined. Clearly, the lis mota of this
case is the very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount
importance to the public. The legality of the directives and
decisions made by the COMELEC in the conduct of the May 14,
2001 national elections may be put in doubt if the constitutional
issue raised by petitioner is left unresolved. In keeping with this
Courts duty to determine whether other agencies of
government have remained within the limits of the Constitution
and have not abused the discretion given them, this Court may
even brush aside technicalities of procedure and resolve any
constitutional issue raised.24 Here the petitioner has complied
with all the requisite technicalities. Moreover, public interest
requires the resolution of the constitutional issue raised by
petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the
COMELEC is a temporary appointment that is prohibited by
Section 1 (2), Article IX-C of the Constitution, which provides as
follows:
"The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without reappointment.
Of those first appointed, three Members shall hold office for
seven years, two Members for five years, and the last Members
for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor.
In no case shall any Member be appointed or designated in a
temporary or acting capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be
withdrawn or revoked by the President at her pleasure, and can
even be disapproved or simply by-passed by the Commission on
Appointments. For this reason, petitioner claims that an ad
interim appointment is temporary in character and consequently
prohibited by the last sentence of Section 1 (2), Article IX-C of
the Constitution.
Based on petitioners theory, there can be no ad interim
appointment to the COMELEC or to the other two constitutional
commissions, namely the Civil Service Commission and the
Commission on Audit. The last sentence of Section 1 (2), Article
IX-C of the Constitution is also found in Article IX-B and Article
IX-D providing for the creation of the Civil Service Commission
and the Commission on Audit, respectively. Petitioner interprets
the last sentence of Section 1 (2) of Article IX-C to mean that
the ad interim appointee cannot assume office until his
appointment is confirmed by the Commission on Appointments
for only then does his appointment become permanent and no
longer temporary in character.
The rationale behind petitioners theory is that only an appointee
who is confirmed by the Commission on Appointments can
guarantee the independence of the COMELEC. A confirmed
appointee is beyond the influence of the President or members
of the Commission on Appointments since his appointment can
no longer be recalled or disapproved. Prior to his confirmation,
the appointee is at the mercy of both the appointing and
confirming powers since his appointment can be terminated at
any time for any cause. In the words of petitioner, a Sword of
Damocles hangs over the head of every appointee whose
confirmation is pending with the Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because
it takes effect immediately and can no longer be withdrawn by
the President once the appointee has qualified into office. The
fact that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent
in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of
Congress. The second paragraph of Section 16, Article VII of the
Constitution provides as follows:
"The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the
next adjournment of the Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such
disapproval or next adjournment, signifying that it can no longer
be withdrawn or revoked by the President. The fear that the
President can withdraw or revoke at any time and for any reason
an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that
an ad interim appointment is permanent in character. In
Summers vs. Ozaeta,25 decided on October 25, 1948, we held
that:
"x x x an ad interim appointment is one made in pursuance of
paragraph (4), Section 10, Article VII of the Constitution, which
provides that the President shall have the power to make
appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of
the Congress. It is an appointment permanent in nature, and
the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent
character. An ad interim appointment is disapproved certainly
for a reason other than that its provisional period has expired.
Said appointment is of course distinguishable from an acting
appointment which is merely temporary, good until another
permanent appointment is issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an
ad interim appointment, and thus an ad interimappointment
takes effect immediately. The appointee can at once assume
office and exercise, as a de jure officer, all the powers pertaining
to the office. In Pacete vs. Secretary of the Commission on
Appointments,26 this Court elaborated on the nature of an ad
interim appointment as follows:
"A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in session and
when it is in recess. In the former, the President nominates, and
only upon the consent of the Commission on Appointments may
the person thus named assume office. It is not so with reference
to ad interim appointments. It takes effect at once. The
individual chosen may thus qualify and perform his function
without loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective until
disapproval by the Commission on Appointments or until the
next adjournment of the Congress."
Petitioner cites Blacks Law Dictionary which defines the term
"ad interim" to mean "in the meantime" or "for the time being."
Hence, petitioner argues that an ad interim appointment is
undoubtedly temporary in character. This argument is not new
and was answered by this Court in Pamantasan ng Lungsod ng
Maynila vs. Intermediate Appellate Court,27 where we explained
that:
"x x x From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the situation.
Private respondent had been extended several ad interim
appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the literal
translation of the word ad interim which creates such belief.
The term is defined by Black to mean "in the meantime" or "for
the time being". Thus, an officer ad interim is one appointed to
fill a vacancy, or to discharge the duties of the office during the
absence or temporary incapacity of its regular incumbent
(Blacks Law Dictionary, Revised Fourth Edition, 1978). But such
is not the meaning nor the use intended in the context of
Philippine law. In referring to Dr. Estebans appointments, the
term is not descriptive of the nature of the appointments given
to him. Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of the
Pamantasan in the meantime, while the Board of Regents, which
is originally vested by the University Charter with the power of
appointment, is unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters of
appointment signed by the President, means a permanent
appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary
appointment that can be withdrawn or revoked at any time. The
term, although not found in the text of the Constitution, has
acquired a definite legal meaning under Philippine
jurisprudence. The Court had again occasion to explain the
nature of an ad interim appointment in the more recent case of
Marohombsar vs. Court of Appeals,28where the Court stated:
"We have already mentioned that an ad interim appointment is
not descriptive of the nature of the appointment, that is, it is not
indicative of whether the appointment is temporary or in an
acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment
extended to private respondent by then MSU President Alonto,
Jr. was issued without condition nor limitation as to tenure. The
permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the
Civil Service Commission Regional Office No. 12. Petitioners
submission that private respondents ad interim appointment is
synonymous with a temporary appointment which could be
validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the
Board disapproves them." (Emphasis supplied)
An ad interim appointee who has qualified and assumed office
becomes at that moment a government employee and therefore
part of the civil service. He enjoys the constitutional protection
that "[n]o officer or employee in the civil service shall be
removed or suspended except for cause provided by law."29
Thus, an ad interim appointment becomes complete and
irrevocable once the appointee has qualified into office. The
withdrawal or revocation of an ad interim appointment is
possible only if it is communicated to the appointee before the
moment he qualifies, and any withdrawal or revocation
thereafter is tantamount to removal from office.30 Once an
appointee has qualified, he acquires a legal right to the office
which is protected not only by statute but also by the
Constitution. He can only be removed for cause, after notice and
hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes
specified in the Constitution. The first cause is the disapproval
of his ad interim appointment by the Commission on
Appointments. The second cause is the adjournment of
Congress without the Commission on Appointments acting on
his appointment. These two causes are resolutory conditions
expressly imposed by the Constitution on all ad interim
appointments. These resolutory conditions constitute, in effect,
a Sword of Damocles over the heads of ad interim appointees.
No one, however, can complain because it is the Constitution
itself that places the Sword of Damocles over the heads of the
ad interimappointees.
While an ad interim appointment is permanent and irrevocable
except as provided by law, an appointment or designation in a
temporary or acting capacity can be withdrawn or revoked at
the pleasure of the appointing power.31A temporary or acting
appointee does not enjoy any security of tenure, no matter how
briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in
Brillantes vs. Yorac,32 this Court struck down as unconstitutional
the designation by then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of the
COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms essentially
temporary and therefore revocable at will. No cause need be
established to justify its revocation. Assuming its validity, the
designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of
the Philippines at any time and for whatever reason she sees fit.
It is doubtful if the respondent, having accepted such
designation, will not be estopped from challenging its
withdrawal.
xxx
The Constitution provides for many safeguards to the
independence of the Commission on Elections, foremost among
which is the security of tenure of its members. That guarantee
is not available to the respondent as Acting Chairman of the
Commission on Elections by designation of the President of the
Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided under
the 1935 Constitution, which did not have a provision prohibiting
temporary or acting appointments to the COMELEC, this Court
nevertheless declared unconstitutional the designation of the
Solicitor General as acting member of the COMELEC. This Court
ruled that the designation of an acting Commissioner would
undermine the independence of the COMELEC and hence violate
the Constitution. We declared then: "It would be more in
keeping with the intent, purpose and aim of the framers of the
Constitution to appoint a permanent Commissioner than to
designate one to act temporarily." (Emphasis supplied)
In the instant case, the President did in fact appoint permanent
Commissioners to fill the vacancies in the COMELEC, subject
only to confirmation by the Commission on Appointments.
Benipayo, Borra and Tuason were extended permanent
appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity,
unlike Commissioner Haydee Yorac in Brillantes vs. Yorac34 and
Solicitor General Felix Bautista in Nacionalista Party vs.
Bautista.35 The ad interim appointments of Benipayo, Borra and
Tuason are expressly allowed by the Constitution which
authorizes the President, during the recess of Congress, to make
appointments that take effect immediately.
While the Constitution mandates that the COMELEC "shall be
independent"36 , this provision should be harmonized with the
Presidents power to extend ad interim appointments. To hold
that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad interim
appointees before the appointees can assume office will negate
the Presidents power to make ad interim appointments. This is
contrary to the rule on statutory construction to give meaning
and effect to every provision of the law. It will also run counter
to the clear intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution -
on the nomination of officers subject to confirmation by the
Commission on Appointments - did not provide for ad interim
appointments. The original intention of the framers of the
Constitution was to do away with ad interim appointments
because the plan was for Congress to remain in session
throughout the year except for a brief 30-day compulsory
recess. However, because of the need to avoid disruptions in
essential government services, the framers of the Constitution
thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional
Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is only 30 days.
So under such circumstances, is it necessary to provide for ad
interim appointments? Perhaps there should be a little
discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is
addressed, this might present problems in terms of anticipating
interruption of government business, considering that we are
not certain of the length of involuntary recess or adjournment
of the Congress. We are certain, however, of the involuntary
adjournment of the Congress which is 30 days, but we cannot
leave to conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a
formula. I wonder if the Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised
by Commissioner Aquino and after conferring with the
Committee, Commissioner Aquino and I propose the following
amendment as the last paragraph of Section 16, the wordings
of which are in the 1935 Constitution: THE PRESIDENT SHALL
HAVE THE POWER TO MAKE APPOINTMENTS DURING THE
RECESS OF CONGRESS WHETHER IT BE 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.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed
amendment of Commissioners Aquino and Bengzon, adding a
paragraph to the last paragraph of Section 16? (Silence) The
Chair hears none; the amendment is approved."37 (Emphasis
supplied)
Clearly, the reinstatement in the present Constitution of the ad
interim appointing power of the President was for the purpose
of avoiding interruptions in vital government services that
otherwise would result from prolonged vacancies in government
offices, including the three constitutional commissions. In his
concurring opinion in Guevara vs. Inocentes,38 decided under
the 1935 Constitution, Justice Roberto Concepcion, Jr. explained
the rationale behind ad interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments so limited?
Because, if they expired before the session of Congress, the evil
sought to be avoided interruption in the discharge of essential
functions may take place. Because the same evil would result
if the appointments ceased to be effective during the session of
Congress and before its adjournment. Upon the other hand,
once Congress has adjourned, the evil aforementioned may
easily be conjured by the issuance of other ad interim
appointments or reappointments." (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16,
Article VII of the Constitution barely avoided the interruption of
essential government services in the May 2001 national
elections. Following the decision of this Court in Gaminde vs.
Commission on Appointments,39 promulgated on December 13,
2000, the terms of office of constitutional officers first appointed
under the Constitution would have to be counted starting
February 2, 1987, the date of ratification of the Constitution,
regardless of the date of their actual appointment. By this
reckoning, the terms of office of three Commissioners of the
COMELEC, including the Chairman, would end on February 2,
2001.40
Then COMELEC Chairperson Harriet O. Demetriou was
appointed only on January 11, 2000 to serve, pursuant to her
appointment papers, until February 15, 2002,41 the original
expiry date of the term of her predecessor, Justice Bernardo P.
Pardo, who was elevated to this Court. The original expiry date
of the term of Commissioner Teresita Dy-Liacco Flores was also
February 15, 2002, while that of Commissioner Julio F. Desamito
was November 3, 2001.42 The original expiry dates of the terms
of office of Chairperson Demetriou and Commissioners Flores
and Desamito were therefore supposed to fall after the May
2001 elections. Suddenly and unexpectedly, because of the
Gaminde ruling, there were three vacancies in the seven-person
COMELEC, with national elections looming less than three and
one-half months away. To their credit, Chairperson Demetriou
and Commissioner Flores vacated their offices on February 2,
2001 and did not question any more before this Court the
applicability of the Gaminderuling to their own situation.
In a Manifestation43 dated December 28, 2000 filed with this
Court in the Gaminde case, Chairperson Demetriou stated that
she was vacating her office on February 2, 2001, as she believed
any delay in choosing her successor might create a
"constitutional crisis" in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a
petition for intervention44 in the Gaminde case but this Court
denied the intervention. Thus, Commissioner Desamito also
vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary
recess between February and June considering that many of the
members of the House of Representatives and the Senate run
for re-election. In 2001, the Eleventh Congress adjourned from
January 9, 2001 to June 3, 2001.45 Concededly, there was no
more time for Benipayo, Borra and Tuason, who were originally
extended ad interim appointments only on March 22, 2001, to
be confirmed by the Commission on Appointments before the
May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim
appointments to fill up the three vacancies in the COMELEC,
there would only have been one division functioning in the
COMELEC instead of two during the May 2001 elections.
Considering that the Constitution requires that "all x x x election
cases shall be heard and decided in division",46 the remaining
one division would have been swamped with election cases.
Moreover, since under the Constitution motions for
reconsideration "shall be decided by the Commission en banc",
the mere absence of one of the four remaining members would
have prevented a quorum, a less than ideal situation considering
that the Commissioners are expected to travel around the
country before, during and after the elections. There was a great
probability that disruptions in the conduct of the May 2001
elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national
elections, right after the tumultuous EDSA II and EDSA III
events, was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant case of
her constitutional power to make ad interimappointments
prevented the occurrence of the very evil sought to be avoided
by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is
lodged in the President to be exercised by her in her sound
judgment. Under the second paragraph of Section 16, Article VII
of the Constitution, the President can choose either of two
modes in appointing officials who are subject to confirmation by
the Commission on Appointments. First, while Congress is in
session, the President may nominate the prospective appointee,
and pending consent of the Commission on Appointments, the
nominee cannot qualify and assume office. Second, during the
recess of Congress, the President may extend an ad interim
appointment which allows the appointee to immediately qualify
and assume office.
Whether the President chooses to nominate the prospective
appointee or extend an ad interim appointment is a matter
within the prerogative of the President because the Constitution
grants her that power. This Court cannot inquire into the
propriety of the choice made by the President in the exercise of
her constitutional power, absent grave abuse of discretion
amounting to lack or excess of jurisdiction on her part, which
has not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the
COMELEC is a long-standing practice. Former President Corazon
Aquino issued an ad interim appointment to Commissioner
Alfredo E. Abueg.47 Former President Fidel V. Ramos extended
ad interim appointments to Commissioners Julio F. Desamito,
Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F.
Gorospe.48 Former President Joseph Estrada also extended ad
interim appointments to Commissioners Abdul Gani M.
Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and
Ralph C. Lantion.49
The Presidents power to extend ad interim appointments may
indeed briefly put the appointee at the mercy of both the
appointing and confirming powers. This situation, however, is
only for a short period - from the time of issuance of the ad
interim appointment until the Commission on Appointments
gives or withholds its consent. The Constitution itself sanctions
this situation, as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-and-balance
under the separation of powers, as a trade-off against the evil
of granting the President absolute and sole power to appoint.
The Constitution has wisely subjected the Presidents appointing
power to the checking power of the legislature.
This situation, however, does not compromise the independence
of the COMELEC as a constitutional body. The vacancies in the
COMELEC are precisely staggered to insure that the majority of
its members hold confirmed appointments, and not one
President will appoint all the COMELEC members.50 In the instant
case, the Commission on Appointments had long confirmed
four51 of the incumbent COMELEC members, comprising a
majority, who could now be removed from office only by
impeachment. The special constitutional safeguards that insure
the independence of the COMELEC remain in place.52 The
COMELEC enjoys fiscal autonomy, appoints its own officials and
employees, and promulgates its own rules on pleadings and
practice. Moreover, the salaries of COMELEC members cannot
be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by
the President to Benipayo, Borra and Tuason, as COMELEC
Chairman and Commissioners, respectively, do not constitute
temporary or acting appointments prohibited by Section 1 (2),
Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim
appointments and the first assumption of office by Benipayo,
Borra and Tuason are constitutional, the renewal of the their ad
interim appointments and their subsequent assumption of office
to the same positions violate the prohibition on reappointment
under Section 1 (2), Article IX-C of the Constitution, which
provides as follows:
"The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without reappointment.
Of those first appointed, three Members shall hold office for
seven years, two Members for five years, and the last members
for three years, without reappointment. X x x." (Emphasis
supplied)
Petitioner theorizes that once an ad interim appointee is by-
passed by the Commission on Appointments, his ad interim
appointment can no longer be renewed because this will violate
Section 1 (2), Article IX-C of the Constitution which prohibits
reappointments. Petitioner asserts that this is particularly true
to permanent appointees who have assumed office, which is the
situation of Benipayo, Borra and Tuason if their ad interim
appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by
the Commission on Appointments can no longer be extended a
new appointment. The disapproval is a final decision of the
Commission on Appointments in the exercise of its checking
power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the
Commission on Appointments to give its consent after
deliberating on the qualifications of the appointee. Since the
Constitution does not provide for any appeal from such decision,
the disapproval is final and binding on the appointee as well as
on the appointing power. In this instance, the President can no
longer renew the appointment not because of the constitutional
prohibition on reappointment, but because of a final decision by
the Commission on Appointments to withhold its consent to the
appointment.
An ad interim appointment that is by-passed because of lack of
time or failure of the Commission on Appointments to organize
is another matter. A by-passed appointment is one that has not
been finally acted upon on the merits by the Commission on
Appointments at the close of the session of Congress. There is
no final decision by the Commission on Appointments to give or
withhold its consent to the appointment as required by the
Constitution. Absent such decision, the President is free to
renew the ad interim appointment of a by-passed appointee.
This is recognized in Section 17 of the Rules of the Commission
on Appointments, which provides as follows:
"Section 17. Unacted Nominations or Appointments Returned to
the President. Nominations or appointments submitted by the
President of the Philippines which are not finally acted upon at
the close of the session of Congress shall be returned to the
President and, unless new nominations or appointments are
made, shall not again be considered by the Commission."
(Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a
by-passed appointment can be considered again if the President
renews the appointment.
It is well settled in this jurisdiction that the President can renew
the ad interim appointments of by-passed appointees. Justice
Roberto Concepcion, Jr. lucidly explained in his concurring
opinion in Guevara vs. Inocentes53why by-passed ad interim
appointees could be extended new appointments, thus:
"In short, an ad interim appointment ceases to be effective upon
disapproval by the Commission, because the incumbent can not
continue holding office over the positive objection of the
Commission. It ceases, also, upon "the next adjournment of the
Congress", simply because the President may then issue new
appointments - not because of implied disapproval of the
Commission deduced from its inaction during the session of
Congress, for, under the Constitution, the Commission may
affect adversely the interim appointments only by action, never
by omission. If the adjournment of Congress were an implied
disapproval of ad interimappointments made prior thereto, then
the President could no longer appoint those so by-passed by the
Commission. But, the fact is that the President may reappoint
them, thus clearly indicating that the reason for said termination
of the ad interim appointments is not the disapproval thereof
allegedly inferred from said omission of the Commission, but the
circumstance that upon said adjournment of the Congress, the
President is free to make ad interim appointments or
reappointments." (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where
the second paragraph of Section 16, Article VII of the present
Constitution on ad interim appointments was lifted verbatim.54
The jurisprudence under the 1935 Constitution governing ad
interim appointments by the President is doubtless applicable to
the present Constitution. The established practice under the
present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a
continuation of the well-recognized practice under the 1935
Constitution, interrupted only by the 1973 Constitution which did
not provide for a Commission on Appointments but vested sole
appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C
of the Constitution applies neither to disapproved nor by-passed
ad interim appointments. A disapproved ad interim appointment
cannot be revived by another ad interimappointment because
the disapproval is final under Section 16, Article VII of the
Constitution, and not because a reappointment is prohibited
under Section 1 (2), Article IX-C of the Constitution. A by-passed
ad interim appointment can be revived by a new ad interim
appointment because there is no final disapproval under Section
16, Article VII of the Constitution, and such new appointment
will not result in the appointee serving beyond the fixed term of
seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he
Chairman and the Commissioners shall be appointed x x x for a
term of seven years without reappointment." (Emphasis
supplied) There are four situations where this provision will
apply. The first situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-year term. Such person
cannot be reappointed to the COMELEC, whether as a member
or as a chairman, because he will then be actually serving more
than seven years. The second situation is where the appointee,
after confirmation, serves a part of his term and then resigns
before his seven-year term of office ends. Such person cannot
be reappointed, whether as a member or as a chair, to a vacancy
arising from retirement because a reappointment will result in
the appointee also serving more than seven years. The third
situation is where the appointee is confirmed to serve the
unexpired term of someone who died or resigned, and the
appointee completes the unexpired term. Such person cannot
be reappointed, whether as a member or chair, to a vacancy
arising from retirement because a reappointment will result in
the appointee also serving more than seven years.
The fourth situation is where the appointee has previously
served a term of less than seven years, and a vacancy arises
from death or resignation. Even if it will not result in his serving
more than seven years, a reappointment of such person to serve
an unexpired term is also prohibited because his situation will
be similar to those appointed under the second sentence of
Section 1 (2), Article IX-C of the Constitution. This provision
refers to the first appointees under the Constitution whose terms
of office are less than seven years, but are barred from ever
being reappointed under any situation. Not one of these four
situations applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any
person who has served any term of office as COMELEC member
whether for a full term of seven years, a truncated term of five
or three years, or even for an unexpired term of any length of
time can no longer be reappointed to the COMELEC.
Commissioner Foz succinctly explained this intent in this
manner:
"MR. FOZ. But there is the argument made in the concurring
opinion of Justice Angelo Bautista in the case of Visarra vs.
Miraflor, to the effect that the prohibition on reappointment
applies only when the term or tenure is for seven years. But in
cases where the appointee serves only for less than seven years,
he would be entitled to reappointment. Unless we put the
qualifying words "without reappointment" in the case of those
appointed, then it is possible that an interpretation could be
made later on their case, they can still be reappointed to serve
for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear
that even in the case of those first appointed under the
Constitution, no reappointment can be made."55 (Emphasis
supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his
concurring opinion, quoted Nacionalista vs. De Vera57that a
"[r]eappointment is not prohibited when a Commissioner has
held office only for, say, three or six years, provided his term
will not exceed nine years in all." This was the interpretation
despite the express provision in the 1935 Constitution that a
COMELEC member "shall hold office for a term of nine years and
may not be reappointed."
To foreclose this interpretation, the phrase "without
reappointment" appears twice in Section 1 (2), Article IX-C of
the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term of
seven years. The second phrase prohibits reappointment of any
person previously appointed for a term of five or three years
pursuant to the first set of appointees under the Constitution. In
either case, it does not matter if the person previously appointed
completes his term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction
of the Commission on Appointments does not constitute a term
of office. The period from the time the ad interim appointment
is made to the time it lapses is neither a fixed term nor an
unexpired term. To hold otherwise would mean that the
President by his unilateral action could start and complete the
running of a term of office in the COMELEC without the consent
of the Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on
Appointments.
The phrase "without reappointment" applies only to one who
has been appointed by the President and confirmed by the
Commission on Appointments, whether or not such person
completes his term of office. There must be a confirmation by
the Commission on Appointments of the previous appointment
before the prohibition on reappointment can apply. To hold
otherwise will lead to absurdities and negate the Presidents
power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments
usually fails to act, for lack of time, on the ad interim
appointments first issued to appointees. If such ad interim
appointments can no longer be renewed, the President will
certainly hesitate to make ad interim appointments because
most of her appointees will effectively be disapproved by mere
inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim
appointments, a power intended to avoid disruptions in vital
government services. This Court cannot subscribe to a
proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three
constitutional commissions. The framers of the present
Constitution prohibited reappointments for two reasons. The
first is to prevent a second appointment for those who have
been previously appointed and confirmed even if they served for
less than seven years. The second is to insure that the members
of the three constitutional commissions do not serve beyond the
fixed term of seven years. As reported in the Journal of the
Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored58 the proposed articles on the three constitutional
commissions, outlined the four important features of the
proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced basic
changes in the common provision affecting the three
Constitutional Commissions, and which are: 1) fiscal autonomy
which provides (that) appropriations shall be automatically and
regularly released to the Commission in the same manner (as)
provided for the Judiciary; 2) fixed term of office without
reappointment on a staggered basis to ensure continuity of
functions and to minimize the opportunity of the President to
appoint all the members during his incumbency; 3) prohibition
to decrease salaries of the members of the Commissions during
their term of office; and 4) appointments of members would not
require confirmation."59 (Emphasis supplied)
There were two important amendments subsequently made by
the Constitutional Commission to these four features. First, as
discussed earlier, the framers of the Constitution decided to
require confirmation by the Commission on Appointments of all
appointments to the constitutional commissions. Second, the
framers decided to strengthen further the prohibition on serving
beyond the fixed seven-year term, in the light of a former chair
of the Commission on Audit remaining in office for 12 years
despite his fixed term of seven years. The following exchange in
the deliberations of the Constitutional Commission is instructive:
"MR. SUAREZ: These are only clarificatory questions, Madam
President. May I call the sponsors attention, first of all, to
Section 2 (2) on the Civil Service Commission wherein it is
stated: "In no case shall any Member be appointed in a
temporary or acting capacity." I detect in the Committees
proposed resolutions a constitutional hangover, if I may use the
term, from the past administration. Am I correct in concluding
that the reason the Committee introduced this particular
provision is to avoid an incident similar to the case of the
Honorable Francisco Tantuico who was appointed in an acting
capacity as Chairman of the Commission on Audit for about 5
years from 1975 until 1980, and then in 1980, was appointed as
Chairman with a tenure of another 7 years. So, if we follow that
appointment to (its) logical conclusion, he occupied that position
for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really
to make sure that any member who is appointed to any of the
commissions does not serve beyond 7 years."60 (Emphasis
supplied)
Commissioner Christian Monsod further clarified the prohibition
on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole
Article, she will notice that there is no reappointment of any kind
and, therefore as a whole there is no way that somebody can
serve for more than seven years. The purpose of the last
sentence is to make sure that this does not happen by including
in the appointment both temporary and acting capacities."61
(Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure
that there will be no reappointment of any kind. On the other
hand, the prohibition on temporary or acting appointments is
intended to prevent any circumvention of the prohibition on
reappointment that may result in an appointees total term of
office exceeding seven years. The evils sought to be avoided by
the twin prohibitions are very specific - reappointment of any
kind and exceeding ones term in office beyond the maximum
period of seven years.
Not contented with these ironclad twin prohibitions, the framers
of the Constitution tightened even further the screws on those
who might wish to extend their terms of office. Thus, the word
"designated" was inserted to plug any loophole that might be
exploited by violators of the Constitution, as shown in the
following discussion in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words "appointed"
and "in", I propose to insert the words OR DESIGNATED so that
the whole sentence will read: "In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does the
Committee say?
MR. FOZ: But it changes the meaning of this sentence. The
sentence reads: "In no case shall any Member be appointed in
a temporary or acting capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this
amendment is that some lawyers make a distinction between an
appointment and a designation. The Gentleman will recall that
in the case of Commissioner on Audit Tantuico, I think his term
exceeded the constitutional limit but the Minister of Justice
opined that it did not because he was only designated during
the time that he acted as Commissioner on Audit. So, in order
to erase that distinction between appointment and designation,
we should specifically place the word so that there will be no
more ambiguity. "In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection?
(Silence) The Chair hears none; the amendment is approved."62
The ad interim appointments and subsequent renewals of
appointments of Benipayo, Borra and Tuason do not violate the
prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on
Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and
renewals of appointments will also not breach the seven-year
term limit because all the appointments and renewals of
appointments of Benipayo, Borra and Tuason are for a fixed
term expiring on February 2, 2008.63 Any delay in their
confirmation will not extend the expiry date of their terms of
office. Consequently, there is no danger whatsoever that the
renewal of the ad interim appointments of these three
respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The
continuing renewal of the ad interim appointment of these three
respondents, for so long as their terms of office expire on
February 2, 2008, does not violate the prohibition on
reappointments in Section 1 (2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign
Petitioner
Petitioner claims that Benipayo has no authority to remove her
as Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the COMELEC,
acting as a collegial body, can authorize such reassignment.
Moreover, petitioner maintains that a reassignment without her
consent amounts to removal from office without due process
and therefore illegal.
Petitioners posturing will hold water if Benipayo does not
possess any color of title to the office of Chairman of the
COMELEC. We have ruled, however, that Benipayo is the de jure
COMELEC Chairman, and consequently he has full authority to
exercise all the powers of that office for so long as his ad interim
appointment remains effective. Under Section 7 (4), Chapter 2,
Subtitle C, Book V of the Revised Administrative Code, the
Chairman of the COMELEC is vested with the following power:
"Section 7. Chairman as Executive Officer; Powers and Duties.
The Chairman, who shall be the Chief Executive Officer of the
Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel
in accordance with the provisions of the Civil Service Law."
(Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is
expressly empowered on his own authority to transfer or
reassign COMELEC personnel in accordance with the Civil
Service Law. In the exercise of this power, the Chairman is not
required by law to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999,
February 15, 2000 and February 15, 2001, attached as Annexes
"X", "Y" and "Z" to her Petition, indisputably show that she held
her Director IV position in the EID only in an acting or temporary
capacity.64 Petitioner is not a Career Executive Service (CES)
officer, and neither does she hold Career Executive Service
Eligibility, which are necessary qualifications for holding the
position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service
Commission.65 Obviously, petitioner does not enjoy security of
tenure as Director IV. In Secretary of Justice Serafin Cuevas vs.
Atty. Josefina G. Bacal,66 this Court held that:
"As respondent does not have the rank appropriate for the
position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, and she can claim no
security of tenure in respect of that position. As held in Achacoso
v. Macaraig:
It is settled that a permanent appointment can be issued only
to a person who meets all the requirements for the position to
which he is being appointed, including the appropriate eligibility
prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being
so, it could be withdrawn at will by the appointing authority and
at a moments notice, conformably to established jurisprudence
x x x.
The mere fact that a position belongs to the Career Service does
not automatically confer security of tenure on its occupant even
if he does not possess the required qualifications. Such right will
have to depend on the nature of his appointment, which in turn
depends on his eligibility or lack of it. A person who does not
have the requisite qualifications for the position cannot be
appointed to it in the first place, or as an exception to the rule,
may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to
him cannot be regarded as permanent even if it may be so
designated x x x."
Having been appointed merely in a temporary or acting capacity,
and not possessed of the necessary qualifications to hold the
position of Director IV, petitioner has no legal basis in claiming
that her reassignment was contrary to the Civil Service Law. This
time, the vigorous argument of petitioner that a temporary or
acting appointment can be withdrawn or revoked at the pleasure
of the appointing power happens to apply squarely to her
situation.
Still, petitioner assails her reassignment, carried out during the
election period, as a prohibited act under Section 261 (h) of the
Omnibus Election Code, which provides as follows:
"Section 261. Prohibited Acts. The following shall be guilty of an
election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any
public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon
prior approval of the Commission."
Petitioner claims that Benipayo failed to secure the approval of
the COMELEC en banc to effect transfers or reassignments of
COMELEC personnel during the election period.67 Moreover,
petitioner insists that the COMELEC en banc must concur to
every transfer or reassignment of COMELEC personnel during
the election period.
Contrary to petitioners allegation, the COMELEC did in fact issue
COMELEC Resolution No. 3300 dated November 6, 2000,68
exempting the COMELEC from Section 261 (h) of the Omnibus
Election Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of
the Omnibus Election Code provides as follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an
election offense:
xxx
(h) Transfer of officers and employees in the civil service Any
public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon
approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the
national and local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or
reassign personnel of the Commission on Elections during the
prohibited period in order that it can carry out its constitutional
duty to conduct free, orderly, honest, peaceful and credible
elections;
"NOW, THEREFORE, the Commission on Elections by virtue of
the powers conferred upon it by the Constitution, the Omnibus
Election Code and other election laws, as an exception to the
foregoing prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill new positions
and transfer or reassign its personnel, when necessary in the
effective performance of its mandated functions during the
prohibited period, provided that the changes in the assignment
of its field personnel within the thirty-day period before election
day shall be effected after due notice and hearing." (Emphasis
supplied)
The proviso in COMELEC Resolution No. 3300, requiring due
notice and hearing before any transfer or reassignment can be
made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like
the petitioner. Under the Revised Administrative Code,69 the
COMELEC Chairman is the sole officer specifically vested with
the power to transfer or reassign COMELEC personnel. The
COMELEC Chairman will logically exercise the authority to
transfer or reassign COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en banc cannot arrogate
unto itself this power because that will mean amending the
Revised Administrative Code, an act the COMELEC en banc
cannot legally do.
COMELEC Resolution No. 3300 does not require that every
transfer or reassignment of COMELEC personnel should carry
the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence
will render the resolution meaningless since the COMELEC en
banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution
No. 3300 should be interpreted for what it is, an approval to
effect transfers and reassignments of personnel, without need
of securing a second approval from the COMELEC en banc to
actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by
law to transfer or reassign COMELEC personnel. The person
holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved
the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayos order reassigning petitioner
from the EID to the Law Department does not violate Section
261 (h) of the Omnibus Election Code. For the same reason,
Benipayos order designating Cinco Officer-in-Charge of the EID
is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De
Guzman, Officer-in-Charge of the Finance Services Department
of the Commission on Elections, did not act in excess of
jurisdiction in paying the salaries and other emoluments of
Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs
against petitioner.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., and
Sandoval-Gutierrez, JJ., concur.
Puno, and Vitug, JJ., on official leave.
 Republic of the Philippines
Rene C. Villa Agrarian Reform 23 August
SUPREME COURT
2004
EN BANC
G.R. No. 164978 October 13, 2005 Joseph H. Tourism 23 August
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, Durano 2004
JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA,
JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO Michael T. Environment and Natural 23 August
S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R. OSMEA Defensor Resources 2004
III, Petitioners
vs.
The appointment papers are uniformly worded as follows:
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B.
Sir:
ABAD, AVELINO J. CRUZ, JR., MICHAEL T. DEFENSOR,
Pursuant to the provisions of existing laws, you are hereby
JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G.
appointed ACTING SECRETARY, DEPARTMENT OF (appropriate
ROMULO, RENE C. VILLA, and ARTHUR C. YAP,
department) vice (name of person replaced).
Respondents.
By virtue hereof, you may qualify and enter upon the
DECISION
performance of the duties and functions of the office, furnishing
CARPIO, J.:
this Office and the Civil Service Commission with copies of your
The Case
Oath of Office.
This is a petition for certiorari and prohibition1 with a prayer for
(signed)
the issuance of a writ of preliminary injunction to declare
Gloria Arroyo
unconstitutional the appointments issued by President Gloria
Respondents took their oath of office and assumed duties as
Macapagal-Arroyo ("President Arroyo") through Executive
acting secretaries.
Secretary Eduardo R. Ermita ("Secretary Ermita") to Florencio B.
On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator
Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H.
Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan Ponce
Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and
Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada ("Senator
Arthur C. Yap ("respondents") as acting secretaries of their
Ejercito-Estrada"), Jinggoy E. Estrada ("Senator Estrada"),
respective departments. The petition also seeks to prohibit
Panfilo M. Lacson ("Senator Lacson"), Alfredo S. Lim ("Senator
respondents from performing the duties of department
Lim"), Jamby A.S. Madrigal ("Senator Madrigal"), and Sergio R.
secretaries.
Osmea, III ("Senator Osmea") ("petitioners") filed the
Antecedent Facts
present petition as Senators of the Republic of the Philippines.
The Senate and the House of Representatives ("Congress")
Congress adjourned on 22 September 2004. On 23 September
commenced their regular session on 26 July 2004. The
2004, President Arroyo issued ad interimappointments3 to
Commission on Appointments, composed of Senators and
respondents as secretaries of the departments to which they
Representatives, was constituted on 25 August 2004.
were previously appointed in an acting capacity. The
Meanwhile, President Arroyo issued appointments2 to
appointment papers are uniformly worded as follows:
respondents as acting secretaries of their respective
Sir:
departments.
Pursuant to the provisions of existing laws, you are hereby
Appointee Department Date of appointed SECRETARY [AD INTERIM], DEPARTMENT OF
Appointment (appropriate department).
By virtue hereof, you may qualify and enter upon the
Arthur C. Yap Agriculture 15 August performance of the duties and functions of the office, furnishing
2004 this Office and the Civil Service Commission with copies of your
oath of office.
Alberto G. Foreign Affairs 23 August
(signed)
Romulo 2004
Gloria Arroyo
Issue
Raul M. Justice 23 August
The petition questions the constitutionality of President Arroyos
Gonzalez 2004
appointment of respondents as acting secretaries without the
Florencio B. Education 23 August consent of the Commission on Appointments while Congress is
Abad 2004 in session.
The Courts Ruling
Avelino J. Cruz, National Defense 23 August The petition has no merit.
Jr. 2004 Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because
President Arroyo had extended to respondents ad interim
appointments on 23 September 2004 immediately after the
recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already
done.4 However, as an exception to the rule on mootness, courts
will decide a question otherwise moot if it is capable of repetition
yet evading review.5
In the present case, the mootness of the petition does not bar
its resolution. The question of the constitutionality of the
Presidents appointment of department secretaries in an acting
capacity while Congress is in session will arise in every such
appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the
legislature may not interfere with the exercise of this executive
power except in those instances when the Constitution expressly
allows it to interfere.6 Limitations on the executive power to
appoint are construed strictly against the legislature.7 The scope
of the legislatures interference in the executives power to
appoint is limited to the power to prescribe the qualifications to
an appointive office. Congress cannot appoint a person to an
office in the guise of prescribing qualifications to that office.
Neither may Congress impose on the President the duty to
appoint any particular person to an office.8
However, even if the Commission on Appointments is composed
of members of Congress, the exercise of its powers is executive
and not legislative. The Commission on Appointments does not
legislate when it exercises its power to give or withhold consent
to presidential appointments. Thus:
xxx The Commission on Appointments is a creature of the
Constitution. Although its membership is confined to members
of Congress, said Commission is independent of Congress. The
powers of the Commission do not come from Congress, but
emanate directly from the Constitution. Hence, it is not an agent
of Congress. In fact, the functions of the Commissioner are
purely executive in nature. xxx9
On Petitioners Standing
The Solicitor General states that the present petition is a quo
warranto proceeding because, with the exception of Secretary
Ermita, petitioners effectively seek to oust respondents for
unlawfully exercising the powers of department secretaries. The
Solicitor General further states that petitioners may not claim
standing as Senators because no power of the Commission on
Appointments has been "infringed upon or violated by the
President. xxx If at all, the Commission on Appointments as a
body (rather than individual members of the Congress) may
possess standing in this case."10
Petitioners, on the other hand, state that the Court can exercise
its certiorari jurisdiction over unconstitutional acts of the
President.11 Petitioners further contend that they possess
standing because President Arroyos appointment of department
secretaries in an acting capacity while Congress is in session
impairs the powers of Congress. Petitioners cite Sanlakas v.
Executive Secretary12 as basis, thus:
To the extent that the powers of Congress are impaired, so is
the power of each member thereof, since his office confers a
right to participate in the exercise of the powers of that
institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can
be questioned by a member of Congress. In such a case, any
member of Congress can have a resort to the courts.
Considering the independence of the Commission on
Appointments from Congress, it is error for petitioners to claim
standing in the present case as members of Congress. President
Arroyos issuance of acting appointments while Congress is in
session impairs no power of Congress. Among the petitioners,
only the following are members of the Commission on
Appointments of the 13th Congress: Senator Enrile as Minority
Floor Leader, Senator Lacson as Assistant Minority Floor Leader,
and Senator Angara, Senator Ejercito-Estrada, and Senator
Osmea as members.
Thus, on the impairment of the prerogatives of members of the
Commission on Appointments, only Senators Enrile, Lacson,
Angara, Ejercito-Estrada, and Osmea have standing in the
present petition. This is in contrast to Senators Pimentel,
Estrada, Lim, and Madrigal, who, though vigilant in protecting
their perceived prerogatives as members of Congress, possess
no standing in the present petition.
The Constitutionality of President Arroyos Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not have
appointed respondents as acting secretaries because "in case of
a vacancy in the Office of a Secretary, it is only an
Undersecretary who can be designated as Acting Secretary."13
Petitioners base their argument on Section 10, Chapter 2, Book
IV of Executive Order No. 292 ("EO 292"),14 which enumerates
the powers and duties of the undersecretary. Paragraph 5 of
Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The
Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the
latters absence or inability to discharge his duties for any cause
or in case of vacancy of the said office, unless otherwise
provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing
powers and duties among them. The President shall likewise
make the temporary designation of Acting Secretary from
among them; and
xxx
Petitioners further assert that "while Congress is in session,
there can be no appointments, whether regular or acting, to a
vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained its
consent."15
In sharp contrast, respondents maintain that the President can
issue appointments in an acting capacity to department
secretaries without the consent of the Commission on
Appointments even while Congress is in session. Respondents
point to Section 16, Article VII of the 1987 Constitution. Section
16 reads:
SEC. 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other
officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies,
commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter to
the Presidents power of appointment. Sections 16 and 17,
Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. The President shall
exercise the power to appoint such officials as provided
for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The
President may temporarily designate an officer already
in the government service or any other competent
person to perform the functions of an office in the
executive branch, appointment to which is vested in him
by law, when: (a) the officer regularly appointed to the
office is unable to perform his duties by reason of illness,
absence or any other cause; or (b) there exists a
vacancy[.]
(2) The person designated shall receive the compensation
attached to the position, unless he is already in the government
service in which case he shall receive only such additional
compensation as, with his existing salary, shall not exceed the
salary authorized by law for the position filled. The
compensation hereby authorized shall be paid out of the funds
appropriated for the office or agency concerned.
(3) In no case shall a temporary designation exceed
one (1) year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically opposed
lines of thought. Petitioners assert that the President cannot
issue appointments in an acting capacity to department
secretaries while Congress is in session because the law does
not give the President such power. In contrast, respondents
insist that the President can issue such appointments because
no law prohibits such appointments.
The essence of an appointment in an acting capacity is its
temporary nature. It is a stop-gap measure intended to fill an
office for a limited time until the appointment of a permanent
occupant to the office.16 In case of vacancy in an office occupied
by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an
alter ego of her choice as acting secretary before the permanent
appointee of her choice could assume office.
Congress, through a law, cannot impose on the President the
obligation to appoint automatically the undersecretary as her
temporary alter ego. An alter ego, whether temporary or
permanent, holds a position of great trust and confidence.
Congress, in the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego should be.
The office of a department secretary may become vacant while
Congress is in session. Since a department secretary is the alter
ego of the President, the acting appointee to the office must
necessarily have the Presidents confidence. Thus, by the very
nature of the office of a department secretary, the President
must appoint in an acting capacity a person of her 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.
Petitioners assert that Section 17 does not apply to
appointments vested in the President by the Constitution,
because it only applies to appointments vested in the President
by law. Petitioners forget that Congress is not the only source
of law. "Law" refers to the Constitution, statutes or acts of
Congress, municipal ordinances, implementing rules issued
pursuant to law, and judicial decisions.17
Finally, petitioners claim that the issuance of appointments in an
acting capacity is susceptible to abuse. Petitioners fail to
consider that acting appointments cannot exceed one year as
expressly provided in Section 17(3), Chapter 5, Title I, Book III
of EO 292. The law has incorporated this safeguard to prevent
abuses, like the use of acting appointments as a way to
circumvent confirmation by the Commission on Appointments.
In distinguishing ad interim appointments from appointments in
an acting capacity, a noted textbook writer on constitutional law
has observed:
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.18
However, we find no abuse in the present case. The absence of
abuse is readily apparent from President Arroyos issuance of ad
interim appointments to respondents immediately upon the
recess of Congress, way before the lapse of one year.
WHEREFORE, we DISMISS the present petition for certiorari
and prohibition.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
REYNATO S. PUNO ARTEMIO V. PANGANIBAN
Associate Justice Associate Justice

LEONARDO A. CONSUELO YNARES-

QUISUMBING SANTIAGO
Associate Justice Associate Justice

ANGELINA SANDOVAL- MA. ALICIA AUSTRIA-

GUTIERREZ MARTINEZ
Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO

Associate Justice MORALES
Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is
hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the
writer of the opinion of the Court.
HILARIO G. DAVIDE, JR.
Chief Justice

EN BANC
G.R. No. 139554 July 21, 2006
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO
CALMA, RAFAEL SIMPAO, JR., and FREDDIE GARCIA,
petitioners,
vs.
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO,
PATRICIA C. SISON, IRMA PONCE-ENRILE
POTENCIANO, and DOREEN FERNANDEZ, respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 139565 July 21, 2006
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO,
PATRICIA C. SISON, IRMA PONCE-ENRILE
POTENCIANO, and DOREEN FERNANDEZ, petitioners,
vs.
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO
CALMA, RAFAEL SIMPAO, JR., and FREDDIE GARCIA,
respondents.
DECISION
CARPIO, J.:
Presidential Decree No. 15 (PD 15) created the Cultural Center
of the Philippines (CCP) for the primary purpose of propagating
arts and culture in the Philippines.1 The CCP is to awaken the
consciousness of the Filipino people to their artistic and cultural
heritage and encourage them to preserve, promote, enhance,
and develop such heritage.2
PD 15 created a Board of Trustees ("Board") to govern the CCP.
PD 15 mandates the Board to draw up programs and projects
that (1) cultivate and enhance public interest in, and
appreciation of, Philippine art; (2) discover and develop talents
connected with Philippine cultural pursuits; (3) create
opportunities for individual and national self-expression in
cultural affairs; and (4) encourage the organization of cultural
groups and the staging of cultural exhibitions.3 The Board
administers and holds in trust real and personal properties of
the CCP for the benefit of the Filipino people.4 The Board invests
income derived from its projects and operations in a Cultural
Development Fund set up to attain the CCP's objectives.5
The consolidated petitions in the case at bar stem from a quo
warranto proceeding involving two sets of CCP Boards. The
controversy revolves on who between the contending groups,
both claiming as the rightful trustees of the CCP Board, has the
legal right to hold office. The resolution of the issue boils down
to the constitutionality of the provision of PD 15 on the manner
of filling vacancies in the Board.
The Case
Before us are two consolidated Petitions for Review on Certiorari
under Rule 45 of the 1997 Rules of Civil Procedure. In G.R. No.
139554, petitioners Armita B. Rufino ("Rufino"), Zenaida R.
Tantoco ("Tantoco"),6 Lorenzo Calma ("Calma"), Rafael Simpao,
Jr. ("Simpao"), and Freddie Garcia ("Garcia"), represented by
the Solicitor General and collectively referred to as the Rufino
group, seek to set aside the Decision7 dated 14 May 1999 of the
Court of Appeals in CA-G.R. SP No. 50272 as well as the
Resolution dated 3 August 1999 denying the motion for
reconsideration. The dispositive portion of the appellate court's
decision reads:
WHEREFORE, judgment is hereby rendered
1) Declaring petitioners [the Endriga group] to have a clear right
to their respective offices to which they were elected by the CCP
Board up to the expiration of their 4-year term,
2) Ousting respondents [the Rufino group], except respondent
Zenaida R. Tantoco, from their respective offices and excluding
them therefrom, and
3) Dismissing the case against respondent Zenaida R. Tantoco.
SO ORDERED.8
In G.R. No. 139565, petitioners Baltazar N. Endriga
("Endriga"), Ma. Paz D. Lagdameo ("Lagdameo"), Patricia C.
Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"),
and Doreen Fernandez ("Fernandez"), collectively referred to as
the Endriga group, assail the Resolution dated 3 August 1999
issued by the Court of Appeals in the same case insofar as it
denied their Motion for Immediate Execution of the Decision
dated 14 May 1999.
The Antecedents
On 25 June 1966, then President Ferdinand E. Marcos issued
Executive Order No. 30 (EO 30) creating the Cultural Center of
the Philippines as a trust governed by a Board of Trustees of
seven members to preserve and promote Philippine culture. The
original founding trustees, who were all appointed by President
Marcos, were Imelda Romualdez-Marcos, Juan Ponce-Enrile,
Andres Soriano, Jr., Antonio Madrigal, Father Horacio Dela
Costa, S.J., I.P. Soliongco, and Ernesto Rufino.
On 5 October 1972, or soon after the declaration of Martial Law,
President Marcos issued PD 15,9 the CCP's charter, which
converted the CCP under EO 30 into a non-municipal public
corporation free from the "pressure or influence of politics."10
PD 15 increased the members of CCP's Board from seven to nine
trustees. Later, Executive Order No. 1058, issued on 10 October
1985, increased further the trustees to 11.
After the People Power Revolution in 1986, then President
Corazon C. Aquino asked for the courtesy resignations of the
then incumbent CCP trustees and appointed new trustees to the
Board. Eventually, during the term of President Fidel V. Ramos,
the CCP Board included Endriga, Lagdameo, Sison, Potenciano,
Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T. Maosa
("Maosa").
On 22 December 1998, then President Joseph E. Estrada
appointed seven new trustees to the CCP Board for a term of
four years to replace the Endriga group as well as two other
incumbent trustees. The seven new trustees were:
1. Armita B. Rufino - President, vice Baltazar N. Endriga
2. Zenaida R. Tantoco - Member, vice Doreen Fernandez
3. Federico Pascual - Member, vice Lenora A. Cabili
4. Rafael Buenaventura - Member, vice Manuel T. Maosa
5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo
6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison
7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano
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 x
x x." 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]." The Endriga group claimed that
it is only when the CCP Board is entirely vacant may the
President of the Philippines 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 Maosa's term. The CCP Board then had 10
incumbent trustees, namely, Endriga, Lagdameo, Sison,
Potenciano, Fernandez, together with Cabili, Father Bernardo P.
Perez ("Fr. Perez"), Eduardo De los Angeles ("De los Angeles"),
Ma. Cecilia Lazaro ("Lazaro"), and Gloria M. Angara ("Angara").
President Estrada retained Fr. Perez, De los Angeles, Lazaro,
and Angara as trustees.
Endriga's term was to expire on 26 July 1999, while the terms
of Lagdameo, Sison, Potenciano, and Fernandez were to expire
on 6 February 1999. The Endriga group maintained that under
the CCP Charter, the trustees' fixed four-year term could only
be terminated "by reason of resignation, incapacity, death, or
other cause." Presidential action was neither necessary nor
justified since the CCP Board then still had 10 incumbent
trustees who had the statutory power to fill by election any
vacancy in the Board.
The Endriga group refused to accept that the CCP was under
the supervision and control of the President. The Endriga group
cited Section 3 of PD 15, which states that the CCP "shall enjoy
autonomy of policy and operation x x x."
The Court referred the Endriga group's petition to the Court of
Appeals "for appropriate action" in observance of the hierarchy
of courts.
On 14 May 1999, the Court of Appeals rendered the Decision
under review granting the quo warranto petition. The Court of
Appeals declared the Endriga group lawfully entitled to hold
office as CCP trustees. On the other hand, the appellate court's
Decision ousted the Rufino group from the CCP Board.
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.
On 3 August 1999, the Court of Appeals denied the Rufino
group's motion for reconsideration. The Court of Appeals also
denied the Endriga group's motion for immediate execution of
the 14 May 1999 Decision.
Hence, the instant consolidated petitions.
Meanwhile, Angara filed a Petition-in-Intervention before this
Court alleging that although she was not named as a respondent
in the quo warranto petition, she has an interest in the case as
the then incumbent CCP Board Chairperson. Angara adopted the
same position and offered the same arguments as the Rufino
group.
The Ruling of the Court of Appeals
The Court of Appeals held that Section 6(b) of PD 15 providing
for the manner of filling vacancies in the CCP Board is clear,
plain, and free from ambiguity. Section 6(b) of PD 15 mandates
the remaining trustees to fill by election vacancies in the CCP
Board. Only when the Board is entirely vacant, which is not the
situation in the present case, may the President exercise his
power to appoint.
The Court of Appeals stated that the legislative history of PD 15
shows a clear intent "to insulate the position of trustee from the
pressure or influence of politics by abandoning appointment by
the President of the Philippines as the mode of filling"11
vacancies in the CCP Board. The Court of Appeals held that until
Section 6(b) of PD 15 is declared unconstitutional in a proper
case, it remains the law. The Court of Appeals also clarified that
PD 15 vests on the CCP Chairperson the power to appoint all
officers, staff, and personnel of the CCP, subject to confirmation
by the Board.
The Court of Appeals denied the Rufino group's motion for
reconsideration for failure to raise new issues except the
argument that Section 6(b) of PD 15 is unconstitutional. The
Court of Appeals declined to rule on the constitutionality of
Section 6(b) of PD 15 since the Rufino group raised this issue
for the first time in the motion for reconsideration. The Court of
Appeals also held, "Nor may the President's constitutional
and/or statutory power of supervision and control over
government corporations restrict or modify the application of the
CCP Charter."12
The Court of Appeals, moreover, denied the Endriga group's
motion for immediate execution of judgment on the ground that
the reasons submitted to justify execution pending appeal were
not persuasive.
The Issues
In G.R. No. 139554, the Rufino group, through the Solicitor
General, contends that the Court of Appeals committed
reversible error:
I
x x x in holding that it was "not actuated" to pass upon the
constitutionality of Section 6(b) of PD 15 inasmuch as the issue
was raised for the first time in [Rufino et al.'s] motion for
reconsideration;
II
x x x in not holding that Section 6(b) of PD 15 is unconstitutional
considering that:
A. x x x [it] is an invalid delegation of the President's appointing
power under the Constitution;
B. x x x [it] effectively deprives the President of his constitutional
power of control and supervision over the CCP;
III
x x x in declaring the provisions of PD 15 as clear and complete
and in failing to apply the executive/administrative construction
x x x which has been consistently recognized and accepted since
1972;
IV
x x x in finding that [Endriga et al.] have a clear legal right to
be the incumbent trustees and officers of the CCP considering
that:
A. Endriga et al. are estopped from instituting the quo warranto
action since they recognized and benefited from the
administrative construction regarding the filling of vacancies in
the CCP Board of Trustees x x x;
B. x x x [Endriga et al.'s] terms did not legally commence as
[they] were not validly elected under PD 15;
C. assuming that [Endriga et al.] were validly elected, they lost
their right to retain their offices because their terms as trustees
expired on 31 December 1998;
D. [Endriga et al.] assumed positions in conflict x x x with their
offices in the CCP and were thus not entitled to retain the same;
V be an actual case or controversy one that involves a conflict
x x x in not dismissing the quo warranto petition for being moot
x x x;
VI
x x x in holding that [Rufino et al.'s] prayer [that the] disputed
offices [be declared] entirely as vacant is bereft of basis and
amounts to "an admission of their lack of right to the office they
claim."13
In G.R. No. 139565, the Endriga group raises the following
issue:
whether a writ of quo warranto involving a public office should
be declared a self-executing judgment and deemed immediately
executory under Rule 39, Section 4 of the Rules of Court.14
The Court's Ruling
The petition in G.R. No. 139554 has merit.
The battle for CCP's leadership between the Rufino and Endriga
groups dealt a blow to the country's artistic and cultural
activities. The highly publicized leadership row over the CCP
created discord among management, artists, scholars,
employees, and even the public because of the public interest
at stake.
Subsequently, the assumption to office of a new President in
2001 seemingly restored normalcy to the CCP leadership. After
then Vice-President Gloria Macapagal-Arroyo assumed the
Presidency on 20 January 2001, the Rufino group tendered their
respective resignations on 24-29 January 2001 as trustees of
the CCP Board. On 12 July 2001, President Macapagal-Arroyo
appointed 11 trustees to the CCP Board with the corresponding
positions set opposite their names:
1. Baltazar N. Endriga - Chairman
2. Nestor O. Jardin - President
3. Ma. Paz D. Lagdameo - Member
4. Teresita O. Luz - Member
5. Irma P.E. Potenciano - Member
6. Eduardo D. De los Angeles - Member
7. Patricia C. Sison - Member
8. Benjamin H. Cervantes - Member
9. Sonia M. Roco - Member
10. Ruperto S. Nicdao, Jr. - Member
11. Lina F. Litton - Member
In its special meeting on 13 July 2001, the CCP Board elected
these 11 newly-appointed trustees to the same positions and as
trustees of the CCP Board. In the same meeting, the Board also
elected the Chairman and President.
On 21 December 2001, the Solicitor General submitted to this
Court a manifestation stating that the "election of the trustees
was made without prejudice to the resolution of the
constitutional issues before this Honorable Court in G.R. Nos.
139554 and 139565, x x x."15
The Issue of Mootness
We first consider the Rufino group's contention that the Endriga
group's quo warranto suit should have been dismissed for being
moot. The Rufino group argued that when the Endriga group's
terms subsequently expired, there was no more actual
controversy for the Court to decide.
For the Court to exercise its power of adjudication, there must
of legal rights, an assertion of opposite legal claims susceptible
of judicial resolution.16 The case must not be moot or based on
extra-legal or other similar considerations not cognizable by
courts of justice.17 A case becomes moot when its purpose has
become stale.18
The purpose of the quo warranto petition was to oust the Rufino
group from the CCP Board and to declare the Endriga group as
the rightful trustees of the CCP Board. It may appear that
supervening events have rendered this case moot with the
resignation of the Rufino group as well as the expiration of the
terms of the Endriga group based on their appointments by then
President Ramos. A "new" set of CCP trustees had been
appointed by President Macapagal-Arroyo and subsequently
elected by the CCP Board.
However, there are times when the controversy is of such
character that to prevent its recurrence, and to assure respect
for constitutional limitations, this Court must pass on the merits
of a case. This is one such case.
The issues raised here are no longer just determinative of the
respective rights of the contending parties. The issues pertaining
to circumstances personal to the Endriga group may have
become stale. These issues are (1) whether the Endriga group
is estopped from bringing the quo warranto for they themselves
were appointed by the incumbent President; (2) whether they
were validly elected by the remaining CCP trustees; (3) whether
their terms expired on 31 December 1998 as specified in their
appointment papers; and (4) whether they are entitled to
immediate execution of judgment.
However, the constitutional question that gave rise to these
issues will continue to spawn the same controversy in the future,
unless the threshold constitutional question is resolved the
validity of Section 6(b) and (c) of PD 15 on the manner of filling
vacancies in the CCP Board. While the issues may be set aside
in the meantime, they are certain to recur every four years,
especially when a new President assumes office, generating the
same controversy all over again. Thus, the issues raised here
are capable of repetition, yet evading review if compromises are
resorted every time the same controversy erupts and the
constitutionality of Section 6(b) and (c) of PD 15 is not resolved.
The Court cannot refrain from passing upon the constitutionality
of Section 6(b) and (c) of PD 15 if only to prevent a repeat of
this regrettable controversy and to protect the CCP from being
periodically wracked by internecine politics. Every President who
assumes office naturally wants to appoint his or her own
trustees to the CCP Board. A frontal clash will thus periodically
arise between the President's constitutional power to appoint
under Section 16, Article VII of the 1987 Constitution and the
CCP trustees' power to elect their fellow trustees under Section
6(b) and (c) of PD 15.
This Court may, in the exercise of its sound discretion, brush
aside procedural barriers19 and take cognizance of constitutional
issues due to their paramount importance. It is the Court's duty
to apply the 1987 Constitution in accordance with what it says
and not in accordance with how the Legislature or the Executive
would want it interpreted.20 This Court has the final word on
what the law means.21 The Court must assure respect for the
constitutional limitations embodied in the 1987 Constitution.
Interpreting Section 6(b) and (c) of PD 15
At the heart of the controversy is Section 6(b) of PD 15, as
amended, which reads:
Board of Trustees. The governing powers and authority of
the corporation shall be vested in, and exercised by, a Board of
eleven (11) Trustees who shall serve without compensation.
xxxx
(b) Vacancies in the Board of Trustees due to termination of
term, resignation, incapacity, death or other cause as may be
provided in the By-laws, shall be filled by election by a vote
of a majority of the trustees held at the next regular
meeting following occurrence of such vacancy. The
elected trustee shall then hold office for a complete term of four
years unless sooner terminated by reason of resignation,
incapacity, death or other cause. Should only one trustee
survive, the vacancies shall be filled by the surviving trustee
acting in consultation with the ranking officers of the Center.
Such officers shall be designated in the Center's Code of By-
Laws. Should for any reason the Board be left entirely vacant,
the same shall be filled by the President of the Philippines acting
in consultation with the aforementioned ranking officers of the
Center. (Emphasis supplied)
Inextricably related to Section 6(b) is Section 6(c) which limits
the terms of the trustees, as follows:
(c) No person may serve as trustee who is not a resident of the
Philippines, of good moral standing in the community and at
least 25 years of age: Provided, That there shall always be a
majority of the trustees who are citizens of the Philippines.
Trustees may not be reelected for more than two (2)
consecutive terms. (Emphasis supplied)
The clear and categorical language of Section 6(b) of PD 15
states that vacancies in the CCP Board shall be filled by a
majority vote of the remaining trustees. Should only one
trustee survive, the vacancies shall be filled by the surviving
trustee acting in consultation with the ranking officers
of the CCP. Should the Board become entirely vacant,
the vacancies shall be filled by the President of the
Philippines acting in consultation with the same ranking
officers of the CCP. Thus, the remaining trustees, whether one
or more, elect their fellow trustees for a fixed four-year term.
On the other hand, Section 6(c) of PD 15 does not allow trustees
to reelect fellow trustees for more than two consecutive terms.
The Power of Appointment
The source of the President's power to appoint, as well as the
Legislature's authority to delegate the power to appoint, is found
in Section 16, Article VII of the 1987 Constitution which
provides:
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
disapproval by the Commission on Appointments or until the
next adjournment of the Congress. (Emphasis supplied)
The power to appoint is the prerogative of the President, except
in those instances when the Constitution provides otherwise.
Usurpation of this fundamentally Executive power by the
Legislative and Judicial branches violates the system of
separation of powers that inheres in our democratic republican
government.22
Under Section 16, Article VII of the 1987 Constitution, the
President appoints three groups of officers. The first group
refers to the heads of the Executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in the President by the
Constitution. The second group refers to those whom the
President may be authorized by law to appoint. The third group
refers to all other officers of the Government whose
appointments are not otherwise provided by law.
Under the same Section 16, there is a fourth group of lower-
ranked officers whose appointments Congress may by law vest
in the heads of departments, agencies, commissions, or boards.
The present case involves the interpretation of Section 16,
Article VII of the 1987 Constitution with respect to the
appointment of this fourth group of officers.23
The President appoints the first group of officers with the
consent of the Commission on Appointments. The President
appoints the second and third groups of officers without the
consent of the Commission on Appointments. The President
appoints the third group of officers if the law is silent on who is
the appointing power, or if the law authorizing the head of a
department, agency, commission, or board to appoint is
declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15
is found unconstitutional, the President shall appoint the
trustees of the CCP Board because the trustees fall under the
third group of officers.
The Scope of the Appointment Power of the Heads of
Departments, Agencies, Commissions, or Boards
The original text of Section 16, Article VII of the 1987
Constitution, as written in Resolution No. 51724 of the
Constitutional Commission, is almost a verbatim copy of the one
found in the 1935 Constitution. Constitutional Commissioner
Father Joaquin Bernas, S.J., explains the evolution of this
provision and its import, thus:
The last sentence of the first paragraph of Section 16 x x x is a
relic from the 1935 and 1973 Constitutions, x x x.
Under the 1935 Constitution, the provision was: "but the
Congress may by law vest the appointment of inferior officers in
the President alone, in the courts, or in the heads of
departments." As already seen, it meant that, while the general
rule was that all presidential appointments needed confirmation
by the Commission on Appointments, Congress could relax this
rule by vesting the power to appoint "inferior officers" in "the
President alone, in the courts, or in the heads of departments."
It also meant that while, generally, appointing authority
belongs to the President, Congress could let others
share in such authority. And the word "inferior" was
understood to mean not petty or unimportant but lower
in rank than those to whom appointing authority could
be given.
Under the 1973 Constitution, according to which the power of
the President to appoint was not limited by any other body, the
provision read: "However, the Batasang Pambansa may by law
vest in members of the Cabinet, courts, heads of agencies,
commissions, and boards the power to appoint inferior officers
in their respective offices." No mention was made of the
President. The premise was that the power to appoint
belonged to the President; but the Batasan could diffuse
this authority by allowing it to be shared by officers
other than the President.
The 1987 provision also has the evident intent of allowing
Congress to give to officers other than the President the
authority to appoint. To that extent therefore reference to the
President is pointless. And by using the word "alone," copying
the tenor of the 1935 provision, it implies, it is submitted, that
the general rule in the 1935 Constitution of requiring
confirmation by the Commission on Appointments had not been
changed. Thereby the picture has been blurred. This confused
text, however, should be attributed to oversight. Reference to
the President must be ignored and the whole sentence must be
read merely as authority for Congress to vest appointing power
in courts, in heads of departments, agencies, commissions, or
boards after the manner of the 1973 text.
Incidentally, the 1987 text, in order to eschew any pejorative
connotation, avoids the phrase "inferior officers" and translates
it instead into "officers lower in rank," that is, lower in rank
than the courts or the heads of departments, agencies,
commissions, or boards.25 (Emphasis supplied)
The framers of the 1987 Constitution clearly intended that
Congress could by law vest the appointment of lower-ranked
officers in the heads of departments, agencies, commissions,
or boards. The deliberations26 of the 1986 Constitutional
Commission explain this intent beyond any doubt.27
The framers of the 1987 Constitution changed the qualifying
word "inferior" to the less disparaging phrase "lower in rank"
purely for style. However, the clear intent remained that these
inferior or lower in rank officers are the subordinates of
the heads of departments, agencies, commissions, or
boards who are vested by law with the power to appoint.
The express language of the Constitution and the clear intent of
its framers point to only one conclusion the officers whom the
heads of departments, agencies, commissions, or boards may
appoint must be of lower rank than those vested by law with
the power to appoint.
Congress May Vest the Authority to Appoint
Only in the Heads of the Named Offices
Further, Section 16, Article VII of the 1987 Constitution
authorizes Congress to vest "in the heads of departments,
agencies, commissions, or boards" the power to appoint lower-
ranked officers. Section 16 provides:
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. (Emphasis supplied)
In a department in the Executive branch, the head is the
Secretary. The law may not authorize the Undersecretary, acting
as such Undersecretary, to appoint lower-ranked officers in the
Executive department. In an agency, the power is vested in the
head of the agency for it would be preposterous to vest it in
the agency itself. In a commission, the head is the chairperson
of the commission. In a board, the head is also the chairperson
of the board. In the last three situations, the law may not also
authorize officers other than the heads of the agency,
commission, or board to appoint lower-ranked officers.
The grant of the power to appoint to the heads of agencies,
commissions, or boards is a matter of legislative grace. Congress
has the discretion to grant to, or withhold from, the heads of
agencies, commissions, or boards the power to appoint lower-
ranked officers. If it so grants, Congress may impose certain
conditions for the exercise of such legislative delegation, like
requiring the recommendation of subordinate officers or the
concurrence of the other members of the commission or board.
This is in contrast to the President's power to appoint which is a
self-executing power vested by the Constitution itself and thus
not subject to legislative limitations or conditions.28 The power
to appoint conferred directly by the Constitution on the Supreme
Court en banc29 and on the Constitutional Commissions30 is also
self-executing and not subject to legislative limitations or
conditions.
The Constitution authorizes Congress to vest the power to
appoint lower-ranked officers specifically in the "heads" of the
specified offices, and in no other person.31 The word "heads"
refers to the chairpersons of the commissions or boards and not
to their members, for several reasons.
First, a plain reading of the last sentence of the first paragraph
of Section 16, Article VII of the 1987 Constitution shows that
the word "heads" refers to all the offices succeeding that term,
namely, the departments, agencies, commissions, or boards.
This plain reading is consistent with other related provisions of
the Constitution.
Second, agencies, like departments, have no collegial governing
bodies but have only chief executives or heads of agencies.
Thus, the word "heads" applies to agencies. Any other
interpretation is untenable.
Third, all commissions or boards have chief executives who are
their heads. Since the Constitution speaks of "heads" of offices,
and all commissions or boards have chief executives or heads,
the word "heads" could only refer to the chief executives or
heads of the commissions or boards.
Fourth, the counterpart provisions of Section 16, Article VII of
the 1987 Constitution in the 1935 and 1973 Constitutions
uniformly refer to "heads" of offices. The 1935 Constitution
limited the grant of the appointment power only to "heads of
departments."32 The 1973 Constitution expanded such grant to
other officers, namely, "members of the Cabinet, x x x, courts,
heads of agencies, commissions, and boards x x x."33
If the 1973 Constitution intended to extend the grant to
members of commissions or boards, it could have followed the
same language used for "members of the Cabinet" so as to state
"members of commissions or boards." Alternatively, the 1973
Constitution could have placed the words commissions and
boards after the word "courts" so as to state "members of the
Cabinet, x x x, courts, commissions and boards." Instead, the
1973 Constitution used "heads of agencies, commissions, and
boards."
Fifth, the 1935, 1973, and 1987 Constitutions make a clear
distinction whenever granting the power to appoint lower-
ranked officers to members of a collegial body or to the head of
that collegial body. Thus, the 1935 Constitution speaks of
vesting the power to appoint "in the courts, or in the heads of
departments." Similarly, the 1973 Constitution speaks of
"members of the Cabinet, courts, heads of agencies,
commissions, and boards."
Also, the 1987 Constitution speaks of vesting the power to
appoint "in the courts, or in the heads of departments,
agencies, commissions, or boards." This is consistent with
Section 5(6), Article VIII of the 1987 Constitution which states
that the "Supreme Court shall x x x [a]ppoint all officials and
employees of the Judiciary in accordance with the Civil Service
Law," making the Supreme Court en banc the appointing power.
In sharp contrast, when the 1987 Constitution speaks of the
power to appoint lower-ranked officers in the Executive branch,
it vests the power "in the heads of departments, agencies,
commissions, or boards."
In addition, the 1987 Constitution expressly provides that in the
case of the constitutional commissions, the power to appoint
lower-ranked officers is vested in the commission as a body.
Thus, Section 4, Article IX-A of the 1987 Constitution provides,
"The Constitutional Commissions shall appoint their officials and
employees in accordance with law."
Sixth, the last clause of the pertinent sentence in Section 16,
Article VII of the 1987 Constitution is an enumerationof offices
whose heads may be vested by law with the power to appoint
lower-ranked officers. This is clear from the framers'
deliberations of the 1987 Constitution, thus:
THE PRESIDENT: Commissioner Davide is recognized.
MR. DAVIDE: On page 8, line 3, change the period (.) after
"departments" to a comma (,) and add AGENCIES,
COMMISSIONS, OR BOARDS. This is just to complete the
enumeration in the 1935 Constitution from which this additional
clause was taken.
THE PRESIDENT: Does the Committee accept?
xxxx
MR. SUMULONG: We accept the amendment.
MR. ROMULO: The Committee has accepted the amendment,
Madam President.
THE PRESIDENT: Is there any objection to the addition of the
words "AGENCIES, COMMISSIONS, OR BOARDS" on line 3, page
8? (Silence) The Chair hears none; the amendment is
approved.34 (Italicization in the original; boldfacing supplied)
As an enumeration of offices, what applies to the first office in
the enumeration also applies to the succeeding offices
mentioned in the enumeration. Since the words "in the heads
of" refer to "departments," the same words "in the heads of"
also refer to the other offices listed in the enumeration, namely,
"agencies, commissions, or boards."
The Chairperson of the CCP Board is the Head of CCP
The head of the CCP is the Chairperson of its Board. PD 15 and
its various amendments constitute the Chairperson of the Board
as the head of CCP. Thus, Section 8 of PD 15 provides:
Appointment of Personnel. The Chairman, with the
confirmation of the Board, shall have the power to appoint all
officers, staff and personnel of the Center with such
compensation as may be fixed by the Board, who shall be
residents of the Philippines. The Center may elect membership
in the Government Service Insurance System and if it so elects,
its officers and employees who qualify shall have the same rights
and privileges as well as obligations as those enjoyed or borne
by persons in the government service. Officials and employees
of the Center shall be exempt from the coverage of the Civil
Service Law and Rules.
Section 3 of the Revised Rules and Regulations of the CCP
recognizes that the head of the CCP is the Chairman of its Board
when it provides:
CHAIRMAN OF THE BOARD. The Board of Trustees shall elect
a Chairman who must be one of its members, and who shall be
the presiding officer of the Board of Trustees, with power among
others, to appoint, within the compensation fixed by the Board,
and subject to confirmation of the Board, remove, discipline all
officers and personnel of the Center, and to do such other acts
and exercise such other powers as may be determined by the
Board of Trustees. The Chairman shall perform his duties and
exercise his powers as such until such time as the Board of
Trustees, by a majority vote, shall elect another Chairman. The
Chairman shall be concurrently President, unless the Board
otherwise elects another President.
Thus, the Chairman of the CCP Board is the "head" of the CCP
who may be vested by law, under Section 16, Article VII of the
1987 Constitution, with the power to appoint lower-ranked
officers of the CCP.
Under PD 15, the CCP is a public corporation governed by a
Board of Trustees. Section 6 of PD 15, as amended, states:
Board of Trustees. The governing powers and authority of
the corporation shall be vested in, and exercised by, a Board of
eleven (11) Trustees who shall serve without compensation.
The CCP, being governed by a board, is not an agency but a
board for purposes of Section 16, Article VII of the 1987
Constitution.
Section 6(b) and (c) of PD 15 Repugnant to
Section 16, Article VII of the 1987 Constitution
Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent
with Section 16, Article VII of the 1987 Constitution. Section
6(b) and (c) of PD 15 empowers the remaining trustees of the
CCP Board to fill vacancies in the CCP Board, allowing them to
elect their fellow trustees. On the other hand, Section 16, Article
VII of the 1987 Constitution allows heads of departments,
agencies, commissions, or boards to appoint only "officers
lower in rank" than such "heads of departments, agencies,
commissions, or boards." This excludes a situation where the
appointing officer appoints an officer equal in rank as him. Thus,
insofar as it authorizes the trustees of the CCP Board to elect
their co-trustees, Section 6(b) and (c) of PD 15 is
unconstitutional because it violates Section 16, Article VII of the
1987 Constitution.
It does not matter that Section 6(b) of PD 15 empowers the
remaining trustees to "elect" and not "appoint" their fellow
trustees for the effect is the same, which is to fill vacancies in
the CCP Board. A statute cannot circumvent the constitutional
limitations on the power to appoint by filling vacancies in a
public office through election by the co-workers in that office.
Such manner of filling vacancies in a public office has no
constitutional basis.
Further, Section 6(b) and (c) of PD 15 makes the CCP trustees
the independent appointing power of their fellow trustees. The
creation of an independent appointing power inherently conflicts
with the President's power to appoint. This inherent conflict has
spawned recurring controversies in the appointment of CCP
trustees every time a new President assumes office.
In the present case, the incumbent President appointed the
Endriga group as trustees, while the remaining CCP trustees
elected the same Endriga group to the same positions. This has
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.
The President's Power of Control
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.
Section 17, Article VII of the 1987 Constitution provides:
The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed. (Emphasis supplied)
The presidential power of control over the Executive branch of
government extends to all executive employees from the
Department Secretary to the lowliest clerk.35 This constitutional
power of the President is self-executing and does not require
any implementing law. Congress cannot limit or curtail the
President's power of control over the Executive branch.36
The 1987 Constitution has established three branches of
government the Executive, Legislative and Judicial. In
addition, there are the independent constitutional bodies like
the Commission on Elections, Commission on Audit, Civil Service
Commission, and the Ombudsman. Then there are the hybrid or
quasi-judicial agencies,37 exercising jurisdiction in specialized
areas, that are under the Executive branch for administrative
supervision purposes, but whose decisions are reviewable by the
courts. Lastly, there are the local government units, which under
the Constitution enjoy local autonomy38 subject only to
limitations Congress may impose by law.39 Local government
units are subject to general supervision by the President.40
Every government office, entity, or agency must fall under the
Executive, Legislative, or Judicial branches, or must belong to
one of the independent constitutional bodies, or must be a
quasi-judicial body or local government unit. Otherwise, such
government office, entity, or agency has no legal and
constitutional basis for its existence.
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."41
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 x x x offices," Section 17, Article VII of the 1987
Constitution does not exempt any executive office one
performing executive functions outside of the independent
constitutional bodies from the President's power of control.
There is no dispute that the CCP performs executive, and not
legislative, judicial, or quasi-judicial functions.
The President's power of control applies to the acts or decisions
of all officers in the Executive branch. This is true whether such
officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of
control means the power to revise or reverse the acts or
decisions of a subordinate officer involving the exercise of
discretion.42
In short, the President sits at the apex of the Executive branch,
and exercises "control of all the executive departments,
bureaus, and offices." There can be no instance under the
Constitution where an officer of the Executive branch is outside
the control of the President. The Executive branch is unitary
since there is only one President vested with executive power
exercising control over the entire Executive branch.43 Any office
in the Executive branch that is not under the control of the
President is a lost command whose existence is without any
legal or constitutional basis.
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.
Otherwise, the Legislature can deprive the President of his
constitutional power of control over "all the executive x x x
offices." If the Legislature can do this with the Executive branch,
then the Legislature can also deal a similar blow to the Judicial
branch by enacting a law putting decisions of certain lower
courts beyond the review power of the Supreme Court. This will
destroy the system of checks and balances finely structured in
the 1987 Constitution among the Executive, Legislative, and
Judicial branches.
Of course, the President's power of control does not extend to
quasi-judicial bodies whose proceedings and decisions are
judicial in nature and subject to judicial review, even as such
quasi-judicial bodies may be under the administrative
supervision of the President. It also does not extend to local
government units, which are merely under the general
supervision 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
President's power of control under Section 17, Article VII of the
1987 Constitution. The intent of Section 6(b) and (c) of PD 15
is to insulate the CCP from political influence and pressure,
specifically from the President.44 Section 6(b) and (c) of PD 15
makes the CCP a self-perpetuating entity, virtually outside the
control of the President. Such a public office or board cannot
legally exist under the 1987 Constitution.
Section 3 of PD 15, as amended, states that the CCP "shall enjoy
autonomy of policy and operation x x x."45 This provision does
not free the CCP from the President's control, for if it does, then
it would be unconstitutional. This provision may give the CCP
Board a free hand in initiating and formulating policies and
undertaking activities, but ultimately these policies and activities
are all subject to the President's power of control.
The CCP is part of the Executive branch. No law can cut off the
President's control over the CCP in the guise of insulating the
CCP from the President's influence. By stating that the
"President shall have control of all the executive x x x offices,"
the 1987 Constitution empowers the President not only to
influence but even to control all offices in the Executive
branch, including the CCP. Control is far greater than, and
subsumes, influence.
WHEREFORE, we GRANT the petition in G.R. No. 139554. We
declare UNCONSTITUTIONAL Section 6(b) and (c) of
Presidential Decree No. 15, as amended, insofar as it authorizes
the remaining trustees to fill by election vacancies in the Board
of Trustees of the Cultural Center of the Philippines. In view of
this ruling in G.R. No. 139554, we find it unnecessary to rule on
G.R. No. 139565.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr.,
J.J., concur.
x ---------------------------------------------------------------------------
----- x
G.R. No. 139554
(Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael
Simpao, Jr., and Freddie Garcia, petitioners, v. Baltazar N.
Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-
Enrile Potenciano, and Doreen Fernandez, respondents)
G.R. No. 139565
(Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison,
Irma Ponce-Enrile Potenciano, and Doreen Fernandez,
petitioners, v. Armita B. Rufino, Zenaida R. Tantoco, Lorenzo
Calma, Rafael Simpao, Jr., and Freddie Garcia, respondents.)
Promulgated:
July 21, 2006
x ---------------------------------------------------------------------------
----- x
DISSENTING OPINION
TINGA, J.:
The majority's ruling is not as innocuous as it may seem. It is of
monumental but disturbing consequence. It upsets the delicate
balance ordained by our constitutional system, which reposes
on the three equal branches of government different inherent
functions augmented by specifically chartered duties. In one
fell swoop, it expands executive power in
unprecedented fashion while diminishing the inherent
plenary power of Congress to make laws as explicitly
guaranteed by the Constitution. It gives license to the
President to disregard the laws enacted by Congress
although it is the Chief Executive's sworn constitutional
duty to faithfully execute the laws of the land, an
intolerable notion under the democratic order. With all
due respect, I must dissent.
The majority has voted to uphold the power of the President to
appoint the members of the Board of Trustees (CCP board) of
the Cultural Center of the Philippines (CCP), a government
owned or controlled corporation (GOCC) established by P.D. No.
15 as amended (CCP Charter)1 as a "non-municipal public
corporation."2 A brief reference to the key facts is necessary to
illustrate the seriousness of the problem.
The petitioners in G.R. No. 139565 (Endriga Group) were
members of the CCP board who sat in such capacity beginning
in 1995. Then President Ramos issued appointment papers to
the members of the Endriga Group in 1995, qualifying that their
appointment would extend only until 31 December 1998. At the
same time, the Endriga Group was likewise elected by the CCP
board as members of the board, with Endriga himself elected as
President.
On 22 December 1998, President Estrada advised Endriga
through a letter advising him of seven (7) new appointees (the
Rufino Group) to the CCP board replacing the Endriga Group.
The Endriga Group resisted these new appointments by filing a
quo warranto petition, the resolution of which by the Court of
Appeals spawned the present petitions.
In main, the Endriga Group posited that they could not have
been replaced by President Estrada as they had not yet
completed their four-year term of office as provided in the CCP
Charter. The Court of Appeals3 agreed with the basic position of
the Endriga Group, notwithstanding the proviso made by
President Ramos in his appointment papers. The Court of
Appeals compelled obeisance instead to Section 6 of the CCP
Charter which reads:
Sec. 6. Board of Trustees. The governing powers and authority
of the corporation shall be vested in, and exercised by, a Board
of eleven (11) trustees who shall serve without compensation.
(a) The trustees appointed by the President of the Philippines
pursuant to Executive Order No. 30 dated 25 June 1966, and
currently holding office shall be the first trustees to serve on the
Board of the new Center and shall be known as Founding
Trustees. They shall elect the remaining trustees for a complete
[Board]. Elected trustees shall hold office for a period of four (4)
years.
(b) Vacancies in the Board of Trustees due to termination of
term, resignation, incapacity, death or other cause as may be
provided in the By-laws, shall be filled by election by a vote of a
majority of the trustees held at the next regular meeting
following occurrence of such vacancy. The elected trustee shall
then hold office for a complete term of four years unless sooner
terminated by reason of resignation, incapacity, death or other
cause. Should only one trustee survive, the vacancies shall be
filled by the surviving trustee acting in consultation with the
ranking officers of the Center. Such officers shall be designated
in the Center's Code of By-Laws. Should for any reason the
Board be left entirely vacant, the same shall be filled by the
President of the Philippines acting in consultation with the
aforementioned ranking officers of the Center.4
The CCP Charter clearly states that the trustees appointed by
the President in 1966 shall elect the remaining trustees to
complete the board, and such electees shall hold office for a
period of four (4) years. Subsequent vacancies in the board shall
be filled by the Board of Trustees, through a majority vote, with
the new appointee serving for a four (4)-year term. The power
to select the members of the Board of Trustees is always vested
in the board, no matter the number of persons who are serving
therein at a particular time, except when all the positions in the
board without exception are vacant. It is only then that the
President may exercise the power to appoint the members of
the board, subject to the condition that the appointments be
made in consultation with the ranking officers of the CCP.
The majority, reversing the Court of Appeals, holds this setup
prescribed by Section 6 of the CCP Charter, unconstitutional.
Two grounds are offered for this holding. First, Section 16,5
Article VII of the Constitution (Appointments Clause) limits the
authority of Congress to vest the power of appointment over
lower-ranked officials only to "heads of departments, agencies,
commissions or boards." In the majority's estimation, the CCP
should be considered as a "board" for purposes of the
Appointments Clause, and thus, only the chairperson of the CCP
could be authorized by law to exercise the right to appoint.6
Second, the presidential power of control over the executive
branch, as provided in Section 17,7 Article VII of the Constitution
(Executive Control Clause), grants the President control over the
CCP. The authority of the CCP board of Trustees to fill vacancies
in the Board renders the CCP a "self-perpetuating entity
[outside] the control of the President," and is thus
unconstitutionally drawn.8
It is not readily apparent from the ponencia whether it maintains
that executive control, as contemplated in the Constitution,
empowers the President to make all appointments of officers
and officials within the executive branch. If that were the
position, such view is clearly inconsistent with the Appointments
Clause which categorically authorizes Congress to empower
officials other than the President to make such appointments, in
the case of lower-ranked officials. To sustain the expansive view
that "executive control" extends to the power of the President
to make all appointments in the executive branch would render
the Appointments Clause inutile. It would then be senseless to
acknowledge that Congress has the right to authorize the heads
of departments, agencies, commissions or boards to appoint
their junior officers, since executive control would indubitably
vest that right to the President anyway. It is nonetheless cold
comfort that the majority does not expressly frame such a view,
and I hope that the ponencia does not lay the groundwork for
such a radical notion.
Notwithstanding, I prefer to delineate the critical issues in
the following manner. The Appointments Clause, being
complete in itself, is the sole constitutional provision governing
the authority of the President to make appointments to the
executive branch, as well as the authority of Congress to provide
otherwise in certain instances. The Executive Control Clause
does not extend to the presidential power of appointments.
Thus, in ruling on whether or not the President or the CCP Board
of Trustees has the power to appoint members of the board, it
is the Appointments Clause alone that should govern.
At the same time, due consideration of the Executive Control
Clause is also warranted in the present cases, but for a different
purpose. It is clear from the petitions that assailed also are the
acts of President Ramos in limiting below four (4) years the term
of his appointees to the CCP board, and the subsequent act of
President Estrada in appointing new appointees to the board
despite the fact that the four(4)-year term of those persons who
purportedly vacated their seats had not yet expired. Thus, a
second critical issue arises: whether the holder of a
statutory term of office in the executive branch may be
removed from office by the President on the basis of the
power of executive control.
The Power of Appointment in Relation to the CCP Board of
Trustees
Constitutional authority to make appointments within the
executive branch is governed solely by the Appointments Clause
of the Constitution, which is broad enough to cover all possible
appointment scenarios. The provision states:
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 first sentence of the Appointments Clause enumerates the
officers whom only the President may appoint, subject to the
consent of the Commission of Appointments. There is no doubt
that no official of the CCP, or any GOCC for that matter, is
included in this first category of appointees.9
The second and third sentences must be examined together.
The second sentence authorizes the President to appoint all
other officers whose appointments are not otherwise provided
for by law, or those whom he may be authorized to appoint by
law. This authority must be appreciated with the third sentence,
which authorizes Congress to vest the appointment of other
officers lower in rank to the President, the courts, or in the heads
of departments, agencies, commissions, or boards.
Thus, as regards the officials in the executive branch other than
those enumerated in the first sentence of the Appointments
Clause, or those who do not belong to the first category, the
following valid scenarios are authorized: (1) the law may
expressly authorize the President to make the appointment; (2)
the law may expressly authorize the courts or the heads of
departments, agencies, commissions or boards to appoint those
officers lower in rank; (3) the law may remain silent on the
power of appointment, thus enabling the President to make the
appointment on the basis of the Appointments Clause itself.
Implicitly, it can also be argued that other than the case of
"other officers lower in rank," Congress may authorize a person
or entity other than the President to appoint all such other
officers, or provide for a modality through which such
appointment may be made. I am aware that this last point may
be a source of controversy, yet for reasons I shall explain later,
it is not an issue in the particular cases at bar and, hence, need
not be settled for now.
From the same provision, the majority formulates two premises:
that the CCP is considered a "board" or "Board" for purposes of
the Appointments Clause,10 and, that only the President or the
chairperson of the CCP Board of Trustees, may be authorized by
law to appoint officials of the CCP.11 I respectfully disagree with
both premises.
CCP an Agency under the Appointments Clause
I submit that "boards," as used in the Appointments Clause,
does not pertain to the boards of directors of government or
public corporations such as the CCP. Such GOCCs are properly
considered as agencies which nonetheless fall within the same
classification in the Appointments Clause.
The term "board" or "Board,"12 as utilized in the administrative
bureaucracy, may pertain to different entities performing
different functions under different mandates. There are several
prominent government agencies which use the nomenclature
"Board," such as the Monetary Board (MB), the Housing Land
Use and Regulatory Board (HLURB), the Department of Agrarian
Reform Adjudication Board (DARAB), the Movie and Television
Review and Classification Board (MTRCB), and the former
Energy Regulatory Board, among others. Collegial bodies such
as the Boards just mentioned have long formed part of the
executive superstructure, along with departments, agencies and
commissions. Hence, it came as no surprise that all four (4)
entities were lumped together in the Appointments Clause.
However, the board of directors or board of trustees of a
government corporation should be appreciated in a different
context. Unlike the Boards enumerated above, the board of
directors/trustees does not constitute a unit that operates by
itself as an agency of the government. Instead, such board of
directors/trustees, as a general rule, operates as the body
that exercises the corporate powers of the government
corporations concerned. The Constitution itself authorizes the
creation of government-owned or controlled corporations
through special charters,13 and the CCP was established as a
public corporation through Presidential Decree No. 15, its
charter.
The majority believes differently, stating that since the CCP is
governed by a board, it is not an agency but a Board for
purposes of the Appointments Clause. The majority explains this
away by merely noting that there is such an entity as the CCP
Board of Trustees. The bother of explaining why the CCP is a
board, as distinguished from a department, agency or
commission is altogether avoided. Instead, it is assumed as self-
evident that since there is a CCP Board of Trustees, the CCP is
consequently a board.
For one, the CCP itself may be considered as an agency since
under the Administrative Code, an agency includes a
government-owned or controlled corporation.14 The term
"Board," used in a general sense, has been defined as a
representative body organized to perform a trust or to execute
official or representative functions,15 or a group of persons with
managerial, supervisory or investigatory functions.16 There is no
doubt that sovereign executive functions can be delegated
through duly constituted Boards, such as the HLURB or MTRCB,
and it is commonly understood that the Boards in those cases
refer to a group of individuals vested with the exercise of
governmental functions. However, boards do not normally have
independent juridical personality, unlike corporations.
Indeed, whatever governmental functions are exercised by the
members of the CCP Board of Trustees are not derived from
their formation as a board but from its installation by charter as
the governing authority of a GOCC. The Board of Trustees is not
vested with any sort of independent juridical personality under
the CCP charter; such personality is imbued instead in the CCP
itself. The Board of Trustees may be the governing authority of
the CCP, but it is the CCP itself as the legislative creation that is
tasked to perform the mandate of its charter. The latest
performances of the prima ballerinas are sponsored and
presented not by the panel known as the "CCP Board of
Trustees," but by the entity that is the CCP itself.
Assuming for the nonce that there is ambiguity in how the term
"board" in the Appointments Clause should be construed, the
rule is that the correct meaning may be made clear and specific
by considering the company of words in which the term is found
or with which it is associated.17 Departments, agencies,
commissions orboards (Boards) all pertain to segregate units
within the executive branch performing with particular
competence unique and specialized functions. Departments,
agencies, commissions or boards (Boards) refer to offices of
different nomenclatures within the executive department, each
performing functions that are independent of each other.
Furthermore, that the use of the disjunctive term "or" in the
enumeration "departments, agencies, commissions or boards
(Boards)" signifies that these four entities, though lumped
together, are under constitutional contemplation disassociated
or distinct from each other.18 Given the degree of fluidity within
administrative practice, it is standard that a particular
government office would create subdivided groupings to which
functions would be delegated. Considering the paucity of
available terms, these groupings could very well be named as
"departments," "agencies," "commissions," or "boards"
(Boards). Thus, Agency X could have an Accounting
Department, a Board of Merit Review, and Employee Health and
Welfare Commission. With the majority's reasoning, these three
aggrupments would fall within the same constitutional class
under the Appointments Clause as Agency X itself. Worse, the
appointing power of the head of the Accounting Department
would be treated separately and accorded equal constitutional
weight as that of the head of Agency X.
The example may border on the absurd, but that is the
implication of the majority's holding that the CCP Board of
Trustees is considered as a "Board" for purposes of the
Appointments Clause, even if the CCP itself is properly an
agency. The enumeration "departments, agencies, commissions
or boards (Boards)," highlighted by the use of the disjunctive
word "or" positively implies that the
items are treated singly, and not one at the same time.19 The
CCP board cannot be disassociated from the CCP itself for the
former was constituted as the governing authority of the CCP
and not as an independent entity on its own.
In short, within the enumeration the CCP is more akin to an
"agency" rather than a "Board." Under the Appointments Clause,
agencies and Boards are accorded similar treatment and in both
cases, Congress may vest the power to appoint officers in the
"head" of such agency or Board. In CCP's case, the appointment
power may be delegated to the "head" of the CCP.
Board of Trustees is the Head of the CCP
Who then is the "head" of the CCP? The majority suggests that
it is the Chairperson of the CCP board. I respectfully differ but
maintain that it is the CCP board itself that is the "head" of the
CCP or acts as such head.
The majority's conclusion is predicated on the premise that the
CCP should be classified as a board (Board) and not an agency.
However, as I pointed out, the CCP as a GOCC should instead
be considered as an agency. Indeed, the CCP Board of Trustees
cannot exercise any function or power outside the context of its
mandate as the governing authority of the CCP.
Certainly, the answer to the query as to who or which is the
head of the CCP should be discerned primarily from its charter.
As earlier stated, Section 6 of the CCP Charter expressly
provides that "the governing powers and authority of the
corporation shall be vested in, and exercised by, a Board
[of] Trustees."20 Even the Rufino Group concedes that the CCP
Board of Trustees itself is the "head" of the CCP, owing to the
fact that is the governing body of the CCP.21
Section 8 of the CCP Charter provides the Chairperson with a
power of appointment which nonetheless is limited, incomplete,
and subject to confirmation by the CCP Board.
Sec. 8. Appointment of Personnel. The Chairman, with the
confirmation of the Board, shall have the power to appoint
all officers, staff and personnel of the Center with such
compensation as may be fixed by the Board, who shall be
residents of the Philippines. xxx22
The Revised Rules and Regulations of the CCP provides the
Chairperson with additional powers not found in the charter,
particularly the power to remove and discipline all officers and
personnel of the CCP. Section 3 of the Revised Rules states:
Sec. 3. Chairman of the Board. The Board of Trustees shall
elect a Chairman who must be one of its members, and who
shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation
fixed by the Board, and subject to confirmation of the
Board, remove, discipline all officers and personnel of the
Center, and to do such other acts and exercise such other
powers as may be determined by the Board of Trustees.
The Chairman shall perform his duties and exercise his powers
as such until such time as the Board of Trustees, by a
majority vote, shall elect another Chairman. The
Chairman shall be concurrently President unless the Board
otherwise elects another President.23
Even as these Revised Rules and Regulations emanate from the
CCP Board itself, the limitations contained therein on the powers
to be exercised by the Chairperson highlight, rather than
diminish, the stature of the board as the governing power and
authority over the CCP.
This relationship between the CCP Chairperson and the CCP
board is aligned with the theory and practice of corporations.
Generally, corporate acts and powers are exercised by the board
of directors of stock corporations or the board of trustees of
non-stock corporations.24 Such corporate powers may be
delegated by charter or by-laws, or even by the board, to
particular corporate officers. However, the authority of officers
to bind the corporation is usually not considered inherent in their
office, but is derived from law, the corporate by-laws, or by
delegation from the board, either expressly or impliedly by habit,
custom or acquiescence in the general course of business.25
In the case of the CCP, whatever powers are delegated to the
CCP Chairperson, even if incidental to the exercise of the
corporate powers of the CCP, are still subject to confirmation by
the Board of Trustees. The Chairperson cannot by
himself/herself enter into contractual relations unless previously
authorized by the Board of Trustees. On the other hand, the
Board may, without prior authority from any other person or
entity, enter into such contractual relations. Even those powers
expressly granted to the Chairperson, such as appointment of
officers, staff and personnel, are qualified with the phrase,
"subject to/with confirmation of the Board."
Evidently, the powers of the CCP Chairperson are especially
circumscribed while the Board of Trustees is vested with latitude
to overturn the discretion of the CCP Chairperson.
In short, for all the prestige that comes with chairing the
CCP board, the Chairperson has limited powers, and
his/her acts are subject to confirmation, if not reversal,
by the board. The Chairperson is not the final authority
as he/she lacks the final say within the CCP system
itself. It is the Board of Trustees that is the duly
constituted governing authority of the CCP, the
statutory delegate vested with the last word over the
acts of the CCP itself.
I feel that the majority has succumbed to the temptation in
regarding the term "head" as exclusively referring to a singular
personality. Such a reading, I respectfully submit, is unduly
formalistic. The proper construction of "head" should be
functional in approach, focusing on the entity that exercises the
actual governing authority rather than searching for a single
individual who could be deemed by reason of title as
representative of the CCP. For the objective of the
Appointments Clause is to allow the power to appoint to
be exercised by the final governing authority of a
department, agency, commission or board (Board) over
its junior officers. It would be patently absurd to insist
that the constitutional intent is to authorize the repose
of such appointing power instead to an individual officer
whose acts are still subject to confirmation by a higher
authority within that office.Interpretatio talis in ambiguis
semper freinda est, ut eviatur inconveniens et absurdum.26
Thus, pursuant to the Appointments Clause, Congress may vest
on the CCP board, as the head of the CCP, the power to appoint
officers of the CCP. The controversy in this case lies though in
the appointment of the members of the Board of Trustees
themselves, and not the particular officers of the CCP. Thus, the
question is this: Can the Board of Trustees be validly
empowered by law to appoint its own members, as it is so under
the CCP Charter?
CCP Board Superior in Rank
Over the Individual Trustees
As stated earlier, the Rufino Group concedes that it is the CCP
board that is the "head" of the CCP.27 At the same time, it argues
that the law could not validly give unto the members of the CCP
board the authority to appoint their fellow trustees, for the latter
would be officers of equal rank, and not lower rank.28 The
majority adopts this latter position of the Rufino Group.29
I respectfully submit that the CCP board may validly appoint its
own trustees, as provided for in Section 6(b) of the CCP Charter,
and under the authority of Section 16, Article VII of the
Constitution. In doing so, I recognize that the Board of
Trustees as a body, the head of the CCP, remains
superior in rank than any particular member of the
board.
Certainly, there can be no argument that an individual member
of the CCP board is an entity separate from the board itself, and
that he, the board member, remains under the governing
authority of the CCP board. Generally speaking, the term
"inferior officer" connotes a relationship with some higher
ranking officer or officers.30 A board member by himself/herself
cannot speak for or act in behalf of the board as a whole, unless
the board authorizes that member to do so. When the Board of
Trustees elects to fill a vacancy in the board, it cannot be said
that it exercises the power appointment to a co-equal office. As
stated before, the Board of Trustees is an entity separate from
and superior to any one of its members.
Under Section 6(d) of the CCP Charter, "majority of the Trustees
holding office shall constitute a quorum to do business." The
CCP board is thus able to operate and exercise its corporate
powers irrespective of the number of persons sitting on the
board at a particular time. In fact, it is possible that at a given
time, the entire CCP board would consist of only one member,
who until such time the vacancies are filled, wields the powers
of the Board of Trustees. This possibility is precisely recognized
under Section 6(b) of the CCP Charter, which authorizes the
single remaining board member to fill the remaining vacancies
in the board. Unusual as it may seem, it precisely aligns with the
theories behind corporate personality. The remaining board
member is authorized to fill the remaining vacancies for at that
moment said member is the Board of Trustees, the governing
authority of the CCP.
The Court has recognized that collective or collegiate bodies
outweigh or outrank the individual members, even if the
member is the presiding officer of the body. In GMCR, Inc. v.
Bell Telecommunications,31 the Court upheld a ruling of the
Court of Appeals invalidating an order and other issuances
signed solely by the Chairman of the National
Telecommunications Commission (NTC). The Chairman had
maintained that he had the exclusive authority to sign, validate
and promulgate all orders, resolutions and decisions of the NTC.
The Court disagreed, holding that the NTC is a collegial body
"requiring a majority vote out of the three members of the
commission in order to validly decide a case or any incident
therein."32 It was further noted that the NTC Chairman "is not
the [NTC]. He alone does not speak for and in behalf of the NTC.
The NTC acts through a three-man body, and the three
members of the commission each has one vote to cast in every
deliberation concerning a case or any incident therein that is
subject to the jurisdiction of the NTC."33
Even the collegial bodies established under the Constitution
exercise their powers collectively, and not through their
presiding officer. Thus, it is the Supreme Court, not the Chief
Justice, which has the power to appoint all officials and
employees of the judiciary.34 The Commission on Elections
(COMELEC) and the Commission on Audit (COA) exercise their
constitutional powers as a body, and not through their
Chairpersons.35
Even if not denominated as such, the CCP board takes on the
same attributes as any collegial body, and could be recognized
as such in the same way that the Court has recognized the
Integrated Bar of the Philippines Board of Governors as a
collegial body. The CCP board makes decisions as a collective
body during its regular meetings, presumably after deliberation,
the exchange of views and ideas, and the concurrence of the
required majority vote.36
Still, the majority's theory that Section 6 of the CCP Charter is
unconstitutional is anchored in part on the assumed predicate
that it is the only the Chairperson of the CCP board, as "head"
of the CCP, who may be empowered by law to appoint the
members of the CCP board. If this premise is adopted, it would
operate as the rule not only in the CCP, but in all GOCCs.
Following the majority, the following kinds of appointment
would consequently be unconstitutional:
1) Appointments to the Board of Directors/Trustees of any GOCC
by authorities other than the President of the Philippines or the
chairperson of the board. The power to appoint members of the
Board of Directors/Trustees of GOCCs would exclusively belong
to the President or the Chairperson of the Board,
notwithstanding any statutory mandate through a charter
providing the contrary.
2) Appointments of other officers and officials of GOCCs by
authorities other than the President of the Philippines or the
chairperson of the board. Even if the Board of Directors or
Trustees is duly constituted by charter as the governing
authority of the GOCC, the majority would deprive such
governing authority any appointing power, as such power could
purportedly be vested only in the President or the chairperson
of the board.
3) Ex-officio appointments to the boards of GOCCs. The charters
of several GOCCs mandate that certain persons sit in the Board
of Directors/Trustees by reason of their office, or in an ex-officio
capacity. Such ex-officioappointments are not expressly
provided for in the Constitution. Following the majority's literalist
reading of the Appointments Clause, ex-officio appointments are
similarly invalid as they do not derive from the exclusive
appointment power of the President or the chairperson of the
board.
Again, with all due respect, the rationale is predicated on a
flawed interpretation of the terms "head" and "board" (Board)
as used in Section 16, Article VII, a reading that is alien to the
common understanding of corporate personality, as well as
actual corporate practice. On the contrary, the procedure
outlined in Section 6 of the CCP Charter, vesting in the CCP
Board of Trustees the authority to appoint the members of the
board, is congruent with constitutional order. It should be
stressed anew that the CCP Board itself is the head of the CCP
and that any individual member of the board is lower in rank
than the board itself.
It is de rigueur for directors of a corporation to fill vacancies in
their own Board where such power is conferred upon them by
statute or charter or by by-law.37 Modern statutes typically
provide that vacancies in the Board, regardless of the cause,
may be filled up by the Board itself, side by side with an identical
power vested in the shareholders.38Among them is the U.S.
Model Corporation Business Act of 1984 which acknowledges
that vacancies in the board of directors may be properly filled
by the Board itself.39 The CCP precisely has that power conferred
to it by statute, the CCP charter that is.
Perhaps this question may arise: if the CCP board, as head of
the CCP, may be legally authorized to appoint its own members,
they being officers lower in rank than the board, who then may
appoint the CCP board itself, as distinguished from individual
vacancies therein? It should be noted though that it is settled
rule that the term "appointment" is in law equivalent to "filling
a vacancy."40 A vacancy exists when there is no person lawfully
authorized to assume and exercise at present the duties of the
office.41 Accordingly the appointment power cannot be validly
exercised unless there is a vacancy to be filled. In the case of
the CCP, its charter provides that the Board of Trustees subsists
even if there is only one remaining board member left.42 Hence,
the CCP board can only be considered as truly vacant if there is
not even one member left sitting on the board. In that case, the
CCP Charter authorizes the President to appoint the new CCP
board to replace the board that no longer exists,43 by filling the
vacancies in the board.
Yet pursuant to the CCP Charter, it still is the President that
appoints the Board of Trustees when such board is vacant. The
statutory impediment to such appointing authority is the
recognition of very limited circumstances under which the CCP
board may be considered as truly vacant.
During deliberations on these petitions, some distress was
raised over the prospect that in case only one person remained
on the CCP Board of Trustees, that one person is empowered to
appoint the other members of the Board. Perhaps the notion
may strike as counterintuitive, yet it is perfectly valid under legal
consideration considering that this sole remaining member
stands as the Board itself, and not just an individual member
thereof. This setup adheres to sound theory that a Board of
Directors/Trustees retains collective force, no matter the
number of persons sitting thereon, so long as the quorum
requirements are satisfied.
Indeed, the idea of a one-person board of directors is hardly a
flight of whimsy under modern corporation law. Consider the
U.S. state of Delaware, the state most associated with
incorporation. With over half of publicly traded American
corporations and over 60% of all Fortune 500
companies incorporated in Delaware[44], it among all
the American states, has the greatest public interest in the
oversight or regulation of corporations. Yet the Delaware
General Corporation Law expressly authorizes a
corporation to constitute a board of directors consisting
of only one (1) member.[45] The choice, as expressed in the
by-laws or the certificate of incorporation, is up to the
corporation. When a board of 1 director is so authorized,
"the 1 director shall constitute a quorum."46Certainly,
there is nothing so forlorn with the statutory prescription of the
CCP charter that admits to the possibility of only one trustee
acting as the Board. The law of Delaware, the corporate hub of
America, sufficiently defeats any supposition that the possibility
of a one-person CCP Board of Trustees offends good customs,
morals, law or public policy.
Our own Corporation Code does not permit one-person Board of
Directors for private corporations,47 yet it concedes that
corporations created by special laws or charters are governed
primarily by the provisions of the charter creating them.48 The
determination of the quorum requirement for chartered
corporations is exclusively the prerogative of the legislature,
which can very well impose a one-person board of directors or,
as in the case of CCP, permit a situation whereby a lone
remaining director would be empowered to act as the board.
The majority states that this statutory setup of the CCP "makes
[it] a self-perpetuating entity." But the CCP is really no different
from private corporations whose boards of directors are, under
the Corporation Code, permitted to fill vacancies in the Board
themselves for as long as the remainder of the board still
constitute a quorum.49 Considering the clear legislative intent to
accord the CCP with a significant degree of independence, with
its chartered guarantee of "autonomy of policy and operation,"50
the notion should give no offense at all. Yet even if there is
wisdom or cause in preventing the "self-perpetuation" of the
CCP Board, the solution lies in legislative amendment. The
majority cannot supplant legislative prerogatives by merely
doing away with provisions of law that meet its aversion.
Moreover, short of amending the CCP Charter there are enough
anti-graft laws, government audit controls and other
administrative safeguards to check abuse in office and ensure
accountable governance.
My own conclusion is that the means prescribed by the CCP
Charter in the appointment of the members of the CCP board is
in accordance with the Appointments Clause, specifically the
provision therein that authorizes Congress to empower the
President, the courts and the heads of departments, agencies,
commissions or boards (Boards) to appoint officers of lower
rank. The CCP is an agency, not a Board, and its head is its
Board of Trustees. The CCP board is superior in rank than any
of its particular members, and it may thus be authorized by law
to fill vacancies by appointing new members of the board.
Should the CCP board be totally vacant, owing to the fact that
no person sits on the board at a given time, then the President
is authorized by law to fill the vacant CCP board by appointment.
While the members of the Endriga Group were "appointed" by
President Ramos, who had no authority to do so, it is also
uncontested that the Endriga Group were subsequently elected
by the CCP board to sit on the Board. For that reason, not their
"appointment" by President Ramos, they could be deemed as
having validly assumed their office upon their election to the
board in 1995, for the statutory term of four (4) years.
Executive Control and Statutory Restrictions Thereon
There is an even more disturbing implication to the present
ruling which the majority barely touches upon. By ruling against
the Endriga Group, and sanctioning their replacement by
President Estrada even though their statutory term had yet to
expire, the majority in effect has ruled that the President
may remove officials whose terms have been fixed by
law even prior to the cessation of the terms in office. The
legal rationale for this precipitate new rule is not precisely
explained. Pointedly though, the majority refers to the power of
the President of executive control to bolster its conclusion,
characterizing such power as "another constitutional
impediment to the implementation of Section 6(b) and (c)" of
the CCP Charter.
The power of the President to maintain executive control over
executive departments, bureaus and offices is constitutionally
mandated by the Executive Control Clause.51 Yet as earlier
stressed, the power of the President to make appointments is
governed by a different provision, the Appointments Clause
which is complete by itself. If executive control is extended to
bear on the power of the President to make appointments in the
executive branch by further expanding it, then the Appointments
Clause would be rendered useless. Clearly, the Constitution
authorizes Congress to vest the power to appoint lower-ranked
officials to the heads of departments, agencies, commissions or
boards, (Boards). To insist that such power of appointment so
vested in an agency head is nonetheless circumscribed by
executive control would render the provision nugatory.
Yet, may executive control be utilized to justify the removal of
public officers within the executive department notwithstanding
statutory restrictions thereon, such as the prescription of a fixed
term of office? To declare that it does would be equivalent to
saying that executive control authorizes the President to violate
the laws passed by Congress. And that is not what the
Constitution says.
The Executive Control Clause, which enshrines the presidential
power of executive control, actually prescribes two (2) functions
to the President.
Sec. 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the
laws be faithfully executed.
While the majority understandably lays emphasis on the first
sentence of the Executive Control Clause, the second sentence
is of equal importance. It emphasizes the cardinal principle that
the President is not above the laws enacted by Congress and is
obliged to obey and execute these laws. The duty of faithful
execution of laws is enshrined not only in the Constitution, but
also in the oath of office of the President and Vice-President.52
It is clear that the twin duties prescribed under the Executive
Control Clause are of equal value. At very least, they should be
construed in harmony, not antagonism, to each other, so that
the power of control that the President may exercise over
executive departments, bureaus and offices should still stay
within the ambit of faithful execution of the Constitution and the
laws of the land which the Constitution itself ordains.
I submit that the members of the CCP board are shielded by law
from arbitrary removal by the President, even if is sought to be
justified under the aegis of executive control. The traditional
view that "the power of removal of executive officers [is]
incident to the power of appointment"53 has since been severely
undercut by the U.S. Supreme Court,54 and is of limited
application in this jurisdiction in light of the constitutional
guarantee to the security of tenure of employees in the civil
service.55 The notion that executive control authorizes the
President to remove the members of the CCP board at his
pleasure contravenes not only the CCP Charter but the
Constitution itself, not to mention our civil service laws.
CCP Embraced Under the Civil Service
Section 2(1), Article IX-B of the Constitution states that "[t]he
civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government owned or controlled corporations with
original charters". It appears to have been the deliberate
intent of the framers of the 1987 Constitution, in specifying the
phrase "with original charters," to exclude from civil service
coverage those GOCCs without original charters, meaning those
incorporated under the general corporation law.56 Yet
undoubtedly, the CCP was created through an original charter,
and is hence covered by the civil service by mandate of the
Constitution. This point has significant impact on the resolution
of this case.
It can be advanced that Ang-Angco v. Castillo57 settles the
question in favor of the Endriga Group. In that case, President
Garcia, through his Executive Secretary, rendered a ruling
finding a Collector of Customs guilty of prejudicial conduct and
considering him "resigned effective from the date of notice."58
The action was justified by virtue of the President's power of
control over all executive departments, bureaus and offices as
provided for in the 1935 Constitution. Ang-Angco countered that
the Civil Service Act of 1959, a legislative enactment, vests in
the Commissioner of Civil Service the original and exclusive
jurisdiction to decide administrative cases against officers and
employees in the classified service such as himself; and that his
subsequent removal by order of the President violated the Civil
Service Act. The Court agreed with Ang-angco, holding that such
"law which governs the action to be taken against officers and
employees in the classified civil service is binding upon the
President."59
The Court explained why the power of executive control could
not supersede a statutory enactment such as the Civil Service
Act of 1959:
Let us now take up the power of control given to the President
by the Constitution over all officers and employees in the
executive department which is now invoked by respondents as
justification to override the specific provisions of the Civil Service
Act. This power of control is couched in general terms for it does
not set in specific manner its extent and scope. Yes, this Court
in the case of Hebron vs. Reyes, supra, had already occasion to
interpret the extent of such power to mean "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. Apparently, the power merely
applies to the exercise of control over the acts of the
subordinate and not over the actor or agent himself of
the act. It only means that the President may set aside the
judgment or action taken by a subordinate in the performance
of his duties.60
xxx
Further, the Court in Ang-Angco chose to avoid the ungainly
clash between the constitutional power of executive control and
the constitutional guarantee of security of tenure to those in the
civil service, thus:
[T]he strongest argument against the theory of respondents is
that it would entirely nullify and set at naught the beneficient
purpose of the whole civil service system implanted in this
Jurisdiction which is to give stability to the tenure of office of
those who belong to the classified service in derogation of the
provision of our Constitution which provides that "No officer or
employee in the civil service shall be removed or suspended
except for cause as provided by law" (Section 4, Article XII,
Constitution). Here, we have two provisions of our
Constitution which are apparently in conflict, the power
of control by the President embodied in Section 10 (1),
Article VII, and the protection extended to those who
are in the civil service of our government embodied in
Section 4, Article XII. It is our duty to reconcile and
harmonize these conflicting provisions in a manner that
may be given to both full force and effect and the only
logical, practical and rational way is to interpret them in
the manner we do it in this decision. As this Court has aptly
said in the case of Lacson vs. Romero:
". . . 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. The country would then go
back to the days of the old Jacksonian Spoils System under
which a victorious Chief Executive, after the elections could if so
minded, sweep out of office, civil service employees differing in
political color or affiliation from him, and sweep in his political
followers and adherents, especially those who have given him
help, political or otherwise." (Lacson vs. Romero, 84 Phil., 740,
754)61
At the same time, the Court considered the difference between
the power of control exercised by President Garcia over his
direct appointees vis--vis that over employees belonging to the
classified service.
There is some point in the argument that the power of control
of the President may extend to the power to investigate,
suspend or remove officers and employees who belong to the
executive department if they are presidential appointees or do
not belong to the classified service for such can be justified
under the principle that the power to remove is inherent in the
power to appoint (Lacson vs. Romero, supra), but not with
regard to those officers and employees who belong to the
classified service for as to them that inherent power cannot be
exercised. This is in line with the provision of our Constitution
which says that "the Congress may by law vest the appointment
of the inferior officers, in the President alone, in the courts, or
in heads of department" (Article VII, Section 10 (3),
Constitution). With regard to these officers whose
appointments are vested on heads of departments,
Congress has provided by law for a procedure for their
removal precisely in view of this constitutional
authority.62
Evidently, Ang-Angco lays the precedent for distinguishing
between officials whose tenure are protected under the civil
service law, and those who enjoy no such statutory protection.
The 1987 Constitution likewise makes it explicit that GOCCs with
original charters such as the CCP are embraced under the civil
service. Reference is thus necessary to the provisions of the
present civil service law, particularly the Administrative Code of
1987.
The Administrative Code restates that GOCCs with original
charters are within the scope of the civil service.63 It further
classifies positions in the civil service into career service and
non-career service.64 Generally, personnel of GOCCs are
classified as career service, provided that they do not fall under
the non-career service. On the other hand, the Administrative
Code provides that non-career service employees under the
Administrative Code are characterized by:
The Non-Career Service shall be characterized by (1) entrance
on bases other than those of the usual tests of merit and fitness
utilized for the career service; and (2) tenure which is limited
to a period specified by law, or which is coterminous with
that of the appointing authority or subject to his pleasure, or
which is limited to the duration of a particular project for which
purpose employment was made.
Included in the non-career service are:
1. Elective officials and their personal or confidential staff;
2. Secretaries and other officials of Cabinet rank who hold their
positions at the pleasure of the President and their personal
confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed
terms of office and their personal or confidential staff;
4. Contractual personnel or those whose employment in the
government is in accordance with a special contract to
undertake a specific work or job requiring special or technical
skills not available in the employing agency, to be accomplished
within a specific period, which in no case shall exceed one year
and performs or accomplishes the specific work or job, under
his own responsibility with a minimum of direction and
supervision from the hiring agency;
5. Emergency and seasonal personnel.65
Since the members of the CCP board are appointed to a fixed
tenure, the four (4)-year period specified by the CCP Charter,
they may be properly considered as non-career service. Yet,
even if these members fall within non-career service, their right
to security of tenure is guaranteed both by the Constitution and
by law.
Section 2. xxx
(3) No officer or employee of the civil service shall be removed
or suspended except for cause provided by law.66
xxx
Sec. 46. Discipline: General Provisions. (a) No officer or
employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law and after due process.67
What are thus the implications of the constitutionally
guaranteed right to security of tenure to non-career
service officials of GOCCs with original charter,
particularly those whose appointments are for a fixed
term? Simply put, these officials cannot be removed
from office before the expiration of their term without
cause, or for causes other than those specified by either
the GOCC's charter, the Administrative Code, or other
relevant civil service laws. Otherwise, their removal is
unconstitutional.
An appointing power cannot arbitrarily remove an officer if the
tenure is fixed by law, or if the officer is appointed to hold during
the pleasure of some officer or board other than that appointing
him.68 In the absence of any provision for summary removal, an
individual appointed to a post for a fixed term may be removed
prior to the term's expiration only for cause. It is the fixity of the
term that destroys the power of removal at pleasure.69
Under the CCP Charter, the term of a trustee may be terminated
"due to termination of term, resignation, incapacity, death or
other cause as may be provided in the By-laws."70 These are the
causes by law which may cause the dismissal of a member of
the CCP board. In this case, the right of the Rufino Group to sit
on the CCP board is premised on the claim that the members of
the Endriga Group vacated their seats before the expiration of
the four (4)-year term owing to the conditionalities made by
President Ramos to their appointment. I have already pointed
out that President Ramos did not have the authority to appoint
the Endriga Group, but that they still were validly elected to the
Board upon vote by the CCP board. Evidently, the conditionality
restricting the Endriga Group to serve for a period less than the
statutory term of four (4) years is invalid, whether or not it was
attached to a valid appointing authority.
Clearly then, the power of the President to remove appointed
officials of GOCCs with original charters, grounded as it could be
in the power of "executive control" in the Constitution, is
circumscribed by another constitutional provision. There is no
showing that the Endriga Group was validly removed for legal
cause before the expiration of their four (4)-year term. Hence,
their removal is unconstitutional, as is the appointment of the
Rufino Group to fill seats to the CCP board that had not yet
become vacant.
CCP Governed by its Statutory Charter
Special considerations must likewise be appreciated owing to
the fact that the CCP is a GOCC with an original charter. The
Constitution authorizes the creation or establishment of GOCCs
with original charters.71 Section 6 of the Corporation Code states
that "[c]orporations created by special laws or charters shall be
governed primarily by the provisions of the special law or charter
creating them or applicable to them."72
Obviously, since the CCP Charter mandates a four (4)-year term
for the members of the CCP board, such condition is binding as
a law governing the CCP. Hence, any measure diminishing a duly
elected trustee's right to serve out the four (4)-year term solely
on the basis of the President's discretion or pleasure runs
contrary to law. This is a simple way to look at the issue, and its
starkness does not detract from its inherent validity. Still, a
deeper examination into the question supports the same
conclusion.
There is no question that a GOCC with original charter falls
within the executive department, hence generally subject to
executive control. At the same time, the fact that its creation is
sourced from legislative will should give cause for pause. GOCCs
may be created by the State either through the legislative
routethe enactment of its original charter, or the executive
routeits incorporation with the Securities and Exchange
Commission. The discretion to incorporate unchartered
government units falls solely with the executive branch, but the
discretion in chartering GOCCs is purely legislative. In theory, a
chartered GOCC can come into being even against the will of
the Chief Executive, as is done if Congress overrides an
executive veto of a bill chartering a particular GOCC.
Our laws similarly sustain the theoretical underpinning that a
chartered GOCC is a creature of the legislative branch of
government, even as it falls within the executive branch. As
noted earlier, Section 6 of the Corporation Code states that
"[c]orporations created by special laws or charters shall be
governed primarily by the provisions of the special law or charter
creating them or applicable to them"73 Thus, it is Congress, and
not the executive branch, which determines a chartered GOCC's
corporate structure, purposes and functions. This basic point
should be beyond controversy. Yet, the majority implies that
Congress cannot limit or curtail the President's power of control
over the Executive branch, and from that context, declares that
a law authorizing the CCP Board of Trustees to appoint its own
members runs afoul with the President's power of control.
Evidently, there is a looming clash between the prerogative of
the President to exercise control over the executive branch, and
the prerogative of Congress to dictate through legislation the
metes and bounds of a government corporation with original
charter.
The scope of the potential controversy could also extend not
only to GOCCs with original charters, but also to other public
offices created by law. Outside of those offices specifically
created by the Constitution itself, the creation and definition of
the bureaucracy that constitutes the executive branch of
government is an incident of the legislative power to make laws.
The power to create public offices is inherently
legislative,74 and generally includes the power to modify
or abolish it.75
Laws that create public offices or GOCCs are no different from
other statutes in that they are all binding on the Chief Executive.
Indeed, while Congress is vested with the power to enact laws,
the President executes the law, executive power generally
defined as the power to enforce and administer the laws.76 The
corresponding task of the Chief Executive is to see that every
government office is managed and maintained properly by the
persons in charge of it in accordance with pertinent laws and
regulations. Corollary to these powers is the power to
promulgate rules and issuances that would ensure a more
efficient management of the executive branch, for so long as
such issuances are not contrary to law.77
Since the creation of public offices involves an inherently
legislative power, it necessarily follows that the particular
characteristics of the public office, including eligibility
requirements and the nature and length of the term in office,
are also for legislative determination. Hence, laws creating
public offices generally prescribe the necessary qualifications for
appointment to the public office and the length of their terms.
The wisdom of such matters is left up to the legislative branch.
At the same time, the power of appointment is executive in
character, and the choice of whom to appoint is within the
discretion of the executive branch of government. This setup
aligns with traditional notions of checks and balances the
choice whom to appoint resting with the executive branch, but
proscribed by the standards enacted by the legislative. Persons
to be appointed to a public office should possess the prescribed
qualifications as may be mandated by Congress.
The same setup governs the removal of officers from public
office. The power to remove a public officer is again executive
in nature, but also subject to limitations as may be provided by
law. Ordinarily, where an office is created by statute, it is wholly
within the power of Congress, its legislative power extends to
the subject of regulating removals from the office.78
Even the very definition of "executive control" under the
Administrative Code concedes that the general definition of
control may yield to a different prescription under a specific law
governing particular agencies.
SECTION 38. Definition of Administrative Relationships.
Unless otherwise expressly stated in the Code or in other laws
defining the special relationships of particular agencies,
administrative relationships shall be categorized and defined as
follows:
(1) Supervision and Control. Supervision and control shall
include authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate
officials or units; determine priorities in the execution of plans
and programs. Unless a different meaning is explicitly
provided in the specific law governing the relationship
of particular agencies the word "control" shall encompass
supervision and control as defined in this paragraph.79
The charters of GOCCs are specific laws with specific application
to the GOCCs they govern. The Administrative Code itself affirms
that "control," as defined by a particular charter, supersedes the
general definition under the Code with respect to the GOCC
governed by the charter. This concession is recognition of the
primacy of legislative enactments in the constitution and
definition of public offices within the executive branch of
government.
The Authority of Congress to Impose Limitations
On the Exercise of Executive Control
There is another worrisome implication in the majority's reliance
on executive control. It connotes that the legislative branch of
government has no power to legislate any form of controls on
executive action, thus effectively authorizing the President to
ignore the laws of Congress. This significant diminution of the
plenary power of the legislature to make laws guts the power of
Congress to check and balance the executive branch of
government.
The duty of the President "to faithfully execute the laws of the
land" places the Chief Executive under the rule of law.80 The
President cannot refuse to carry out a law for the simple reason
that in his/her judgment it will not be beneficial to the people.81
Indeed, the exercise of every aspect of executive power,
whether residual, express, or delegated, is governed by one
principle beyond compromisethat such powers be in
accordance with law. Executive control, taken to its furthest
extreme that it warrants the unchecked exercise of executive
power, can be used to justify the President or his/her subalterns
in ignoring the law, or disobeying the law.
I submit that as a means of checking executive power, the
legislature is empowered to impose reasonable statutory
limitations in such exercise, over such areas wherein the
legislative jurisdiction to legislate is ceded. As stated earlier,
among such areas within the province of Congress is the
creation of public offices or GOCCs. Even as such public offices
or GOCCs may fall within the control and supervision of the
executive branch, Congress has the power, through legislation,
to enact whatever restrictions it may deem fit to prescribe for
the public good.
Indeed, there are appreciable limits to what restrictions
Congress may impose on public offices within the Executive
Branch. For example, a law prescribing a fixed term for a Cabinet
Secretary which may extend beyond the President's term of
office is of dubious constitutional value, since Cabinet
departments are recognized by law and tradition as extensions
of the President, and their heads as alter egos thereof. This
concession likewise finds constitutional enshrinement in the fact
that the Appointments Clause vests solely in the President the
power to appoint members of the cabinet, subject only to
confirmation by the Commission on Appointments. I likewise
recognize that in the absence of statutory restrictions, the
President should be given wide latitude in the selection and
termination of presidential appointees, and discretion to review,
reverse or modify the acts of these officials.
GOCCs with original charters pose special considerations. The
very fact that they were created by legislative enactments
denotes the presence of statutory restrictions. At the same time,
while remaining agencies of the State, they are in possession of
independent juridical personality segregate from that of the
Government. Indeed, the very corporate character of GOCCs
implies a legislative intent to delegate sovereign functions to an
entity that, in legal contemplation, is endowed with a separate
character from the Government. The congressional charter of a
GOCC should be recognized as legislative expression of some
degree of independence from the Government reposed in the
GOCC. The charter itself is an assertion of a GOCC's statutory
independence from the other offices in the executive branch.
The comments of Constitutional Commissioner Fr. Joaquin
Bernas on the power of control over GOCCs warrant
consideration:
It is submitted [that] the Executive's power of control over
government-owned corporations, which in legal category are
not on the same level as executive departments, bureaus, or
offices, is not purely constitutional but largely statutory. The
legislature may place them under the control of the Executive
where their functions "partake of the nature of government
bureaus and offices." Unlike executive departments, bureaus or
offices, however, which by constitutional mandate must be
under the Executive's control, government-owned corporations
may be removed by the legislature from the Executive's control
when the nature of their functions is changed.82
Even with respect to other public offices, if Congress deems it
necessary to vest such a particular public office with a degree
of independence from the executive branch, then the legislative
prescription of conditions to the appointment/removal, including
the fixing of a term of office, should generally be upheld.
Indeed, Congress has the right to create public offices. While
falling under the executive branch of government, the
legislature may find in its creation such a significant public
purpose as to be accorded a degree of independence from the
executive department. This may especially hold true for quasi-
judicial agencies tasked with determining competing claims
lodged by private persons against the executive department. In
the United States, the Supreme Court has upheld the authority
of Congress "in creating quasi-legislative or quasi-judicial
agencies, to require them to act in the discharge of their duties
independently of executive control and that the authority
includes, as an appropriate incident, power to fix the period
during which they shall continue in office, and to forbid their
removal except for cause in the meantime."83
Unlike the "necessary and proper" clause of the U.S.
Constitution,84 there is no express characterization in our
Constitution as to what laws our legislature should enact. This
should not dissuade the Court from recognizing that Congress
has the right to enact laws that are for the public good, even if
they impair the comfort of private citizens or the officials of
government. There are valid legislative purposes for insulating
certain agencies of the State from unfettered executive
interference. Congress may create agencies under the executive
branch tasked with investigatory or fact-finding functions, and
accord them a necessary degree of independence by assuring
tenure to its members, for example. I submit that such
prerogative of Congress is aligned with the principle of checks
and balances, under which the legislature is empowered to
prescribe standards and impose limitations in the exercise of
powers vested or delegated to the President. The ruling in the
majority would sadly impair the right of the legislature to impart
public offices it creates with safeguards that ensure
independence from executive interference should Congress
deem that such independence serves a necessary public
purpose.
The implications are similarly ruinous to the independent
corporate personality of GOCCs as determined and fleshed out
by Congress. Their charters are legislative enactments beyond
the pale of the President to amend or repeal. In effect, there
is a seeming new rule that the President may ignore
or countermand statutory limitations contained in the
charters of GOCCs. The President may thus abolish
chartered GOCCs at whim, appoint persons Congress
may have deemed as unqualified to positions in the
GOCC, alter the corporate purposes for which the GOCC
was established, all in the guise of executive control.
Executive control may similarly be justified to alter or
deprive statutory rights which may have been vested by
Congress to private persons via the corporate charter.
The power of Congress to charter government
corporations would be rendered worthlessan intent
hardly justified by the Constitution, which allocated the
power to create GOCCs to Congress.85
CCP Charter a Means of Promoting
An Autonomous Policy on the Arts
Odd as the structure of the CCP may be, its atypical nature was
not enacted for the sake of uniqueness, but for laudable public
purposes which the Court should acknowledge. The CCP
Charter, apart from recognizing the CCP's corporate personality,
goes as far as mandating that the CCP "enjoy[s] autonomy of
policy and operation."86 While the inherent right of Congress to
create public offices in general, and specifically to charter GOCCs
sufficiently justifies the constitutionality of Section 6 of the CCP
Charter. Still, if it is necessary to inquire into the public purpose
for prescribing the unique setup of the CCP, I submit that the
mandated autonomy of the CCP is in accord with constitutional
principles that should be upheld and promoted.
The Constitution provides that "arts and letters shall enjoy the
patronage of the State"87 and "[t]he state shall foster the
preservation, enrichment, and dynamic evolution of a Filipino
national culture based on the principle of unity in diversity in a
climate of free artistic and intellectual expression."88
More crucially, artistic and intellectual expression is
encompassed in free expression guaranteed by the Bill of
Rights.89 Clearly, art and culture, in constitutional
contemplation, is not the product of collectivist thought like the
prescribed social realism in Stalin's Soviet Union, but of free
individual expression consonant to the democratic ideal.
The assurance of policy and operational autonomy on the CCP
is aligned with these constitutional purposes. Government-
sponsored art is susceptible to executive diktat, especially to
countermand unpopular art or to dilute its potency to the point
of innocuousness. Indeed, executive control left unhampered
could allow the executive branch to impose its own notions of
what art and culture should be, and to block the art forms that
do not conform to its vision. Given the paramount constitutional
protection guaranteed to artistic expression, such executive
interference would contravene constitutional rights. Such
interference could be enforced by the executive through a Board
of Directors whose subservience could be guaranteed by their
staying in office solely by pleasure of the President. Even
without the autonomy granted to the CCP in its charter, the CCP
as a government agency would still be precluded from
denigrating any person's right to free expression. But the fact
that the legislative charter did put into operation safeguards that
promote a climate of artistic independence should be lauded and
upheld as within the prerogative of the legislature to enact.
There is no higher public purpose in the formulation of laws than
to promote constitutional values.
I could not improve on the following disquisition of Justice Puno
on the important role the CCP has played in our development as
a nation:
The CCP Complex is the only area in the Philippines that is fully
devoted to the growth and propagation of arts and culture. It is
the only venue in the country where artists, Filipino and foreign
alike, may express their art in its various forms, be it in music,
dance, theater, or in the visual arts such as painting, sculpture
and installation art or in literature such as prose, poetry and the
indigenous oral and written literary forms. The theaters and
facilities of the Complex have been utilized for the staging of
cultural presentations and for the conduct of lectures and
demonstrations by renowned visiting artists. The wide open
spaces of the Complex are the only open spaces in Metropolitan
Manila that have been used to accommodate huge crowds in
cultural, artistic and even religious events.
But the fulfillment of CCP's mandate did not start and end in
Manila Bay. The CCP, through its Board of Trustees, has reached
out to the provinces through programs, scholarships and
national competitions for young artists. It has helped young
artists hone their craft and develop their creativity and
ingenuity. It has also exposed the Filipino artists to foreign art
and advanced instruction, and thereby develop world-class
artists, earning for the Philippines the respect and admiration of
other countries. The CCP has likewise exposed the ordinary
Filipino to the national culture. It has enhanced public interest
in Philippine art in various forms, in our history, in our
indigenous and modern culture, and at the same time, enriched
us with the culture of other countries. The CCP has indeed
emerged as a dynamic force in the promotion of the country's
artistic and cultural heritage and the development of new and
modern art forms. Through the years, it has helped raise the
Filipino consciousness to our nationhood, and in the process,
inculcated love for our country The state recognizes the vital
role arts and culture play in national development. Indeed, a
nation that would give up its cultural patrimony in exchange for
economic and material pursuits cannot but be doomed as a
"people without a soul."90 The Cultural Center of the Philippines
has helped us capture this "soul."91
Art thrives within an atmosphere of free thought. The CCP
Charter, by ensuring political and operational autonomy,
ferments expression free from prior restraint or subsequent
punishment from the executive department. There is a
constitutional purpose to the independence attendant to the
unique corporate structure of the CCP. There is constitutional
authority for the legislature to charter a government corporation
with reasonable safeguards of independence from the executive
branch. And there is a constitutional duty for the President to
obey and execute the laws enacted by Congress.
Conclusion
The ruling of the Court today is boon for those quarters which
wish to concede to the presidency as much power as there can
be. Sadly, it comes at the expense of the time-honored
prerogative of Congress to legislate laws. The power of
Congress to enact legislative charters with any sort of
restrictions that would be enforced is now severely put in doubt.
The power of Congress to fix the terms of the offices it creates
is now controvertible. The President has been given the green
light to remove at will officials whose terms of offices are set by
law, without regard to the constitutional guarantee of security
of tenure to these officials. All these wrought simply because for
the majority, the CCP Board of Trustees somehow
transubstantiated itself into the CCP itself.
I have consistently advocated a generous interpretation of
presidential authority, owing to my firm belief in the potency of
the inherent and residual powers implicit in the highest office of
the land.92 Still, the Constitution is allergic to an omnipotent
presidency, and thus, the law is the limit. This is a live tiger that
the majority has set loose today, one utterly capable of inflicting
great pain on the delicate balance that safeguards the
separation of powers.
DANTE O. TINGA
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 196231 September 4, 2012
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting
through and represented by EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, Officer in
Charge, Office of the Deputy Executive Secretary for
Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, and ATTY. CARLITOD.
CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT,
ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and
ATTY. FROILAN MONTALBAN, .JR., in their capacities as
CHAIRMAN and MEMBERS of the OFFICE OF
MALACAANG LEGAL AFFAIRS, Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
These two petitions have been consolidated not because they
stem from the same factual milieu but because they raise a
common thread of issues relating to the President's exercise of
the power to remove from office herein petitioners who claim
the protective cloak of independence of the constitutionally-
created office to which they belong - the Office of the
Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for
Certiorari (with application for issuance of temporary restraining
order or status quo order) which assails on jurisdictional grounds
the Decision1 dated March 31, 2011 rendered by the Office of
the President in OP Case No. 10-J-460 dismissing petitioner
Emilio A. Gonzales III, Deputy Ombudsman for the Military and
Other Law Enforcement Offices (MOLEO), upon a finding of guilt
on the administrative charges of Gross Neglect of Duty and
Grave Misconduct constituting a Betrayal of Public Trust. The
petition primarily seeks to declare as unconstitutional Section
8(2) of Republic Act (R.A.) No. 6770, otherwise known as the
Ombudsman Act of 1989, which gives the President the power
to dismiss a Deputy Ombudsman of the Office of the
Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition for
Certiorari and Prohibition (with application for issuance of a
temporary restraining order or status quo order) seeking to
annul, reverse and set aside (1) the undated Order2 requiring
petitioner Wendell Barreras-Sulit to submit a written explanation
with respect to alleged acts or omissions constituting
serious/grave offenses in relation to the Plea Bargaining
Agreement (PLEBARA) entered into with Major General Carlos
F. Garcia; and (2) the April 7, 2011 Notice of Preliminary
Investigation,3 both issued by the Office of the President in OP-
DC-Case No. 11-B-003, the administrative case initiated against
petitioner as a Special Prosecutor of the Office of the
Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the
President the power to dismiss a Special Prosecutor of the Office
of the Ombudsman.
The facts from which these two cases separately took root are
neither complicated nor unfamiliar.
In the morning of August 23, 2010, news media scampered for
a minute-by-minute coverage of a hostage drama that had
slowly unfolded right at the very heart of the City of Manila.
While initial news accounts were fragmented it was not difficult
to piece together the story on the hostage-taker, Police Senior
Inspector Rolando Mendoza. He was a disgruntled former police
officer attempting to secure his reinstatement in the police force
and to restore the benefits of a life-long, and erstwhile
bemedaled, service. The following day, broadsheets and
tabloids were replete with stories not just of the deceased
hostage-taker but also of the hostage victims, eight of whom
died during the bungled police operation to rescue the hapless
innocents. Their tragic deaths triggered word wars of foreign
relation proportions. One newspaper headline ran the story in
detail, as follows:
MANILA, Philippines - A dismissed policeman armed with an
assault rifle hijacked a bus packed with tourists, and killed most
of its passengers in a 10 hour-hostage drama shown live on
national television until last night.
Former police senior inspector Rolando Mendoza was shot dead
by a sniper at past 9 p.m. Mendoza hijacked the bus and took
21 Chinese tourists hostage, demanding his reinstatement to the
police force.
The hostage drama dragged on even after the driver of the bus
managed to escape and told police that all the remaining
passengers had been killed.
Late into the night assault forces surrounded the bus and tried
to gain entry, but a pair of dead hostages hand-cuffed to the
door made it difficult for them. Police said they fired at the
wheels of the bus to immobilize it.
Police used hammers to smash windows, door and wind-shield
but were met with intermittent fire from the hos-tage taker.
Police also used tear gas in an effort to confirm if the remaining
hostages were all dead or alive. When the standoff ended at
nearly 9 p.m., some four hostages were rescued alive while
Mendoza was killed by a sniper.
Initial reports said some 30 policemen stormed the bus. Shots
also rang out, sending bystanders scampering for safety.
It took the policemen almost two hours to assault the bus
because gunfire reportedly rang out from inside the bus.
Mendoza hijacked the tourist bus in the morning and took the
tourists hostage.
Mendoza, who claimed he was illegally dismissed from the police
service, initially released nine of the hostages during the drama
that began at 10 a.m. and played out live on national television.
Live television footage showed Mendoza asking for food for
those remaining in the bus, which was delivered, and fuel to
keep the air-conditioning going. The disgruntled former police
officer was reportedly armed with an M-16 rifle, a 9 mm pistol
and two hand grenades.
Mendoza posted a handwritten note on the windows of the bus,
saying "big deal will start after 3 p.m. today." Another sign stuck
to another window said "3 p.m. today deadlock."
Stressing his demand, Mendoza stuck a piece of paper with a
handwritten message: "Big mistake to correct a big wrong
decision." A larger piece of paper on the front windshield was
headed, "Release final decision," apparently referring to the
case that led to his dismissal from the police force.
Negotiations dragged on even after Mendoza's self-imposed
deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was
upset over his dismissal from the police force. "His problem was
he was unjustly removed from service. There was no due
process, no hearing, no com-plaint," Gregorio said.
Last night, Gregorio was arrested by his colleagues on
suspicions of being an accessory to his brother's action.
Tensions rose as relatives tried to prevent lawmen from
arresting Gregorio in front of national television. This triggered
the crisis that eventually forced Mendoza to carry out his threat
and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief
Inspector Romeo Salvador tried to talk Mendoza into
surrendering and releasing the 21 hostages, mostly children and
three Filipinos, including the driver, the tourist guide and a
photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza in-side the bus, which was
parked in front ofthe Quirino Grandstand.
Children could be seen peeking from the drawn curtains of the
bus while police negotiators hovered near the scene.
Manila Police District (MPD) director Chief Superinten-dent
Rodolfo Magtibay ordered the deployment of crack police teams
and snipers near the scene. A crisis man-agement committee
had been activated with Manila Vice Mayor Isko Moreno
coordinating the actions with the MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a
meeting with Moreno to discuss Mendoza's case that led to his
dismissal from the service. Ombudsman spokesman Jose de
Jesus said Gutierrez gave a "sealed letter" to Moreno to be
delivered to Mendoza. De Jesus did not elaborate on the
contents of the letter but said Moreno was tasked to personally
deliver the letter to Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said Mendoza
was apparently distraught by the slow process of the
Ombudsman in deciding his motion for reconside-ration. He said
the PNP-Internal Affairs Service and the Manila Regional Trial
Court had already dismissed crim-inal cases against him.
The hostage drama began when Mendoza flagged down the
Hong Thai Travel Tourist bus (TVU-799), pretend-ing to hitch a
ride. Margarejo said the bus had just left Fort Santiago in
Intramuros when Mendoza asked the driver to let him get on
and ride to Quirino Grandstand. Upon reaching the Quirino
Grandstand, Mendoza an-nounced to the passengers that they
would be taken hostage. "Having worn his (police) uniform, of
course there is no doubt that he already planned the hostage
taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon
Porcalla, Amanda Fisher, Cecille Suerte Felipe, Christi-na
Mendez, AP Grandstand Carnage, The Philippine Star, Updated
August 24, 2010 12:00 AM, Val Rodri-guez.4
In a completely separate incident much earlier in time, more
particularly in December of 2003, 28-year-old Juan Paolo Garcia
and 23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their
luggage and making false statements to US Customs Officers.
The Garcia brothers pleaded guilty to bulk cash smuggling and
agreed to forfeit the amount in favor of the US Government in
exchange for the dismissal of the rest of the charges against
them and for being sentenced to time served. Inevitably,
however, an investigation into the source of the smuggled
currency conducted by US Federal Agents and the Philippine
Government unraveled a scandal of military corruption and
amassed wealth -- the boys' father, Retired Major General Carlos
F. Garcia, former Chief Procurement Officer of the Armed
Forces, had accumulated more than 300 Million during his
active military service. Plunder and Anti-Money Laundering
cases were eventually filed against Major General Garcia, his
wife and their two sons before the Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge5 for Grave Misconduct
(robbery, grave threats, robbery extortion and physical injuries)
was filed before the Philippine National Police-National Capital
Region (PNP-NCR) against Manila Police District Senior
Inspector (P/S Insp.) Rolando Mendoza, and four others,
namely, Police Inspector Nelson Lagasca, Senior Police
Inspector I Nestor David, Police Officer III Wilson Gavino, and
Police Officer II Roderick Lopena. A similar charge was filed by
the private complainant, Christian M. Kalaw, before the Office of
the City Prosecutor, Manila, docketed as I.S. No. 08E-09512.
On July 24, 2008, while said cases were still pending, the Office
of the Regional Director of the National Police Commission (NPC)
turned over, upon the request of petitioner Emilio A. Gonzales
III, all relevant documents and evidence in relation to said case
to the Office of the Deputy Ombudsman for appropriate
administrative adjudication.6 Subsequently, Case No. OMB-P-A-
08-0670-H for Grave Misconduct was lodged against P/S Insp.
Rolando Mendoza and his fellow police officers, who filed their
respective verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was
dismissed7 upon a finding that the material allegations made by
the complainant had not been substantiated "by any evidence
at all to warrant the indictment of respondents of the offenses
charged." Similarly, the Internal Affairs Service of the PNP issued
a Resolution8 dated October 17, 2008 recommending the
dismissal without prejudice of the administrative case against
the same police officers, for failure of the complainant to appear
in three (3) consecutive hearings despite due notice.
However, on February 16, 2009, upon the recommendation of
petitioner Emilio Gonzales III, a Decision9 in Case No. OMB-P-A-
08-0670-H finding P/S Insp. Rolando Mendoza and his fellow
police officers guilty of Grave Misconduct was approved by the
Ombudsman. The dispositive portion of said Decision reads:
WHEREFORE, it is respectfully recommended that respondents
P/S Insp. ROLANDO DEL ROSARIO MENDOZA and PO3
WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP.
NELSON URBANO LAGASCA, SPO1 NESTOR REYES
DAVID and PO2 RODERICK SALVA LOPEA of Manila
Police District, Headquarters, United Nations Avenue, Manila, be
meted the penalty of DISMISSAL from the Service, pursuant
to Section 52 (A), Rule IV, Uniform Rules on Administrative
Cases in the Civil Service, with the accessory penalties of
forfeiture of retirement benefits and perpetual disqualification
from reemployment in the government service pursuant to
Section 58, Rule IV of the same Uniform Rules of Administrative
Cases in the Civil Service, for having committed GRAVE
MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration10
of the foregoing Decision, followed by a Supplement to the
Motion for Reconsideration11 on November 19, 2009. On
December 14, 2009, the pleadings mentioned and the records
of the case were assigned for review and recommendation to
Graft Investigation and Prosecutor Officer Dennis L. Garcia, who
released a draft Order12 on April 5, 2010 for appropriate action
by his immediate superior, Director Eulogio S. Cecilio, who, in
turn, signed and forwarded said Order to petitioner Gonzalez's
office on April 27, 2010. Not more than ten (10) days after, more
particularly on May 6, 2010, petitioner endorsed the Order,
together with the case records, for final approval by
Ombudsman Merceditas N. Gutierrez, in whose office it
remained pending for final review and action when P/S Insp.
Mendoza hijacked a bus-load of foreign tourists on that fateful
day of August 23, 2010 in a desperate attempt to have himself
reinstated in the police service.
In the aftermath of the hostage-taking incident, which ended in
the tragic murder of eight HongKong Chinese nationals, the
injury of seven others and the death of P/S Insp. Rolando
Mendoza, a public outcry against the blundering of government
officials prompted the creation of the Incident Investigation and
Review Committee (IIRC),13 chaired by Justice Secretary Leila
de Lima and vice-chaired by Interior and Local Government
Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public
hearings and executive sessions. However, petitioner, as well as
the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman
is an independent constitutional body.
Sifting through testimonial and documentary evidence, the IIRC
eventually identified petitioner Gonzales to be among those in
whom culpability must lie. In its Report,14 the IIRC made the
following findings:
Deputy Ombudsman Gonzales committed serious and
inexcusable negligence and gross violation of their own rules of
procedure by allowing Mendoza's motion for reconsideration to
languish for more than nine (9) months without any justification,
in violation of the Ombudsman prescribed rules to resolve
motions for reconsideration in administrative disciplinary cases
within five (5) days from submission. The inaction is gross,
considering there is no opposition thereto. The prolonged
inaction precipitated the desperate resort to hostage-taking.
More so, Mendoza's demand for immediate resolution of his
motion for reconsideration is not without legal and compelling
bases considering the following:
(a) PSI Mendoza and four policemen were investigated by the
Ombudsman involving a case for alleged robbery (extortion),
grave threats and physical injuries amounting to grave
misconduct allegedly committed against a certain Christian
Kalaw. The same case, however, was previously dismissed by
the Manila City Prosecutors Office for lack of probable cause and
by the PNP-NCR Internal Affairs Service for failure of the
complainant (Christian Kalaw) to submit evidence and prosecute
the case. On the other hand, the case which was filed much
ahead by Mendoza et al. against Christian Kalaw involving the
same incident, was given due course by the City Prosecutors
Office.
(b) The Ombudsman exercised jurisdiction over the case based
on a letter issued motu proprio for Deputy Ombudsman Emilio
A. Gonzalez III, directing the PNP-NCR - without citing any
reason - to endorse the case against Mendoza and the arresting
policemen to his office for administrative adjudication, thereby
showing undue interest on the case. He also caused the
docketing of the case and named Atty. Clarence V. Guinto of the
PNP-CIDG-NCR, who indorsed the case records, as the nominal
complainant, in lieu of Christian Kalaw. During the proceedings,
Christian Kalaw did not also affirm his complaint-affidavit with
the Ombudsman or submit any position paper as required.
(c) Subsequently, Mendoza, after serving preventive
suspension, was adjudged liable for grave misconduct by
Deputy Ombudsman Gonzales (duly approved on May 21, 2009)
based on the sole and uncorroborated complaint-affidavit of
Christian Kalaw, which was not previously sustained by the City
Prosecutor's Office and the PNP Internal Affairs Service. From
the said Resolution, Mendoza interposed a timely motion for
reconsideration (dated and filed November 5, 2009) as well as
a supplement thereto. No opposition or comment was filed
thereto.
(d) Despite the pending and unresolved motion for
reconsideration, the judgment of dismissal was enforced,
thereby abruptly ending Mendoza's 30 years of service in the
PNP with forfeiture of all his benefits. As a result, Mendoza
sought urgent relief by sending several hand-written letter-
requests to the Ombudsman for immediate resolution of his
motion for reconsideration. But his requests fell on deaf ears.
xxxx
By allowing Mendoza's motion for reconsideration to languish for
nine long (9) months without any justification, Ombudsman
Gutierrez and Deputy Ombudsman Gonzales committed
complete and wanton violation of the Ombudsman prescribed
rule to resolve motions for reconsideration in administrative
disciplinary cases within five (5) days from submission (Sec. 8,
Ombudsman Rules of Procedure). The inaction is gross, there
being no opposition to the motion for reconsideration.
Besides, the Ombudsman, without first resolving the motion for
reconsideration, arbitrarily enforced the judgment of dismissal
and ignored the intervening requests for immediate resolution,
thereby rendering the inaction even more inexcusable and
unjust as to amount to gross negligence and grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman
Gonzales committed serious disregard of due process, manifest
injustice and oppression in failing to provisionally suspend the
further implementation of the judgment of dismissal against
Mendoza pending disposition of his unresolved motion for
reconsideration.
By enforcing the judgment of dismissal without resolving the
motion for reconsideration for over nine months, the two
Ombudsman officials acted with arbitrariness and without
regard to due process and the constitutional right of an accused
to the speedy disposition of his case. As long as his motion for
reconsideration remained pending and unresolved, Mendoza
was also effectively deprived of the right to avail of the ordinary
course of appeal or review to challenge the judgment of
dismissal before the higher courts and seek a temporary
restraining order to prevent the further execution thereof.
As such, if the Ombudsman cannot resolve with dispatch the
motion for reconsideration, it should have provisionally
suspended the further enforcement of the judgment of dismissal
without prejudice to its re-implementation if the reconsideration
is eventually denied. Otherwise, the Ombudsman will benefit
from its own inaction. Besides, the litigant is entitled to a stay
of the execution pending resolution of his motion for
reconsideration. Until the motion for reconsideration is denied,
the adjudication process before the Ombudsman cannot be
considered as completely finished and, hence, the judgment is
not yet ripe for execution.
xxxx
When the two Ombudsman officials received Mendoza's demand
for the release of the final order resolving his motion for
reconsideration, they should have performed their duty by
resolving the reconsideration that same day since it was already
pending for nine months and the prescribed period for its
resolution is only five days. Or if they cannot resolve it that same
day, then they should have acted decisively by issuing an order
provisionally suspending the further enforcement of the
judgment of dismissal subject to revocation once the
reconsideration is denied and without prejudice to the arrest and
prosecution of Mendoza for the hostage-taking. Had they done
so, the crisis may have ended peacefully, without necessarily
compromising the integrity of the institution. After all, as relayed
to the negotiators, Mendoza did express willingness to take full
responsibility for the hostage-taking if his demand for release of
the final decision or reinstatement was met.
But instead of acting decisively, the two Ombudsman officials
merely offered to review a pending motion for review of the
case, thereby prolonging their inaction and aggravating the
situation. As expected, Mendoza - who previously berated
Deputy Gonzales for allegedly demanding Php150,000 in
exchange for favorably resolving the motion for reconsideration
- rejected and branded as trash ("basura") the Ombudsman [sic]
letter promising review, triggering the collapse of the
negotiations. To prevent the situation from getting out of hand,
the negotiators sought the alternative option of securing before
the PNP-NCRPO an order for Mendoza's provisional
reinstatement pending resolution of the motion for
reconsideration. Unfortunately, it was already too late. But had
the Ombudsman officials performed their duty under the law
and acted decisively, the entire crisis may have ended
differently.
The IIRC recommended that its findings with respect to
petitioner Gonzales be referred to the Office of the President
(OP) for further determination of possible administrative
offenses and for the initiation of the proper administrative
proceedings.
On October 15, 2010, the OP instituted a Formal Charge15
against petitioner Gonzales for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty under Rule XIV,
Section 22 of the Omnibus Rules Implementing Book V of E.O.
No. 292 and other pertinent Civil
Service Laws, rules and regulations, and for Misconduct in Office
under Section 3 of the Anti-Graft and Corrupt Practices Act.16
Petitioner filed his Answer17 thereto in due time.
Shortly after the filing by the OP of the administrative case
against petitioner, a complaint dated October 29, 2010 was filed
by Acting Assistant Ombudsman Joselito P. Fangon before the
Internal Affairs Board of the Office of the Ombudsman charging
petitioner with "directly or indirectly requesting or receiving any
gift, present, share, percentage, or benefit, for himself or for
any other person, in connection with any contract or transaction
between the Government and any other party, wherein the
public officer in his official capacity has to intervene under the
law" under Section 3(b) of the Anti-Graft and Corrupt Practices
Act, and also, with solicitation or acceptance of gifts under
Section 7(d) of the Code of Conduct and Ethical Standards.18 In
a Joint Resolution19 dated February 17, 2011, which was
approved by Ombudsman Ma. Merceditas N. Gutierrez, the
complaint was dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause
to indict respondent Emilio A. Gonzales III for violations of
Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713,
the complaint is hereby be [sic] DISMISSED.
Further, finding no sufficient evidence to hold respondent
administratively liable for Misconduct, the same is likewise
DISMISSED.
Meanwhile, the OP notified20 petitioner that a Preliminary
Clarificatory Conference relative to the administrative charge
against him was to be conducted at the Office of the Deputy
Executive Secretary for Legal Affairs (ODESLA) on February 8,
2011. Petitioner Gonzales alleged,21 however, that on February
4, 2011, he heard the news that the OP had announced his
suspension for one year due to his delay in the disposition of
P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that
any proceeding before it would simply be a charade, petitioner
no longer attended the scheduled clarificatory conference.
Instead, he filed an Objection to Proceedings22 on February 7,
2011. Despite petitioner's absence, however, the OP pushed
through with the proceedings and, on March 31, 2011, rendered
the assailed Decision,23 the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, this Office finds Deputy
Ombudsman Emilio A. Gonzales III guilty of Gross Neglect of
Duty and Grave Misconduct constituting betrayal of public trust,
and hereby meted out the penalty of DISMISSAL from service.
SO ORDERED.
Hence, the petition.
G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the
Office of the Ombudsman charged Major General Carlos F.
Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan
Paulo Garcia and Timothy Mark Garcia and several unknown
persons with Plunder (Criminal Case No. 28107) and Money
Laundering (Criminal Case No. SB09CRM0194) before the
Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major General
Garcia's urgent petition for bail holding that strong prosecution
evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special
Prosecutor Wendell Barreras-Sulit ("Barreras-Sulit") and her
prosecutorial staff sought the Sandiganbayan's approval of a
Plea Bargaining Agreement (hereinafter referred to as
"PLEBARA") entered into with the accused. On May 4, 2010, the
Sandiganbayan issued a Resolution finding the change of plea
warranted and the PLEBARA compliant with jurisprudential
guidelines.
Outraged by the backroom deal that could allow Major General
Garcia to get off the hook with nothing but a slap on the hand
notwithstanding the prosecution's apparently strong evidence of
his culpability for serious public offenses, the House of
Representatives' Committee on Justice conducted public
hearings on the PLEBARA. At the conclusion of these public
hearings, the Committee on Justice passed and adopted
Committee Resolution No. 3,24recommending to the President
the dismissal of petitioner Barreras-Sulit from the service and
the filing of appropriate charges against her Deputies and
Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable
violations of the Constitution and betrayal of public trust, which
are violations under the Anti-Graft and Corrupt Practices Act and
grounds for removal from office under the Ombudsman Act.
The Office of the President initiated OP-DC-Case No. 11-B-003
against petitioner Barreras-Sulit. In her written explanation,
petitioner raised the defenses of prematurity and the lack of
jurisdiction of the OP with respect to the administrative
disciplinary proceeding against her. The OP, however, still
proceeded with the case, setting it for preliminary investigation
on April 15, 2011.
Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following
grounds, to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE OTHER INDIVIDUAL RESPONDENTS, HAS NO
CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE
INVESTIGATION AND TO THEREAFTER ORDER HIS REMOVAL
AS DEPUTY OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE OTHER INDIVIDUAL RESPONDENTS, GRAVELY ABUSED
ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION
AND RENDERED ITS DECISION IN VIOLATION OF
PETITIONER'S RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER COMMITTED
DELAY IN THE DISPOSITION OF MENDOZA'S MOTION FOR
RECONSIDERATION.
(D)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE
INTEREST IN MENDOZA'S CASE.
(E)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FAULTING PETITIONER FOR NOT
RELEASING THE RESOLUTION ON MENDOZA'S MOTION FOR
RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.
(F)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL
EVIDENCE TO SHOW THAT PETITIONER DEMANDED A BRIBE
FROM MENDOZA.25
On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit
poses for the Court the question -
AS OF THIS POINT IN TIME, WOULD TAKING AND
CONTINUING TO TAKE ADMINISTRATIVE
DISCIPLINARY PROCEEDING AGAINST PETITIONER BE
LAWFUL AND JUSTIFIABLE?26
Re-stated, the primordial question in these two petitions is
whether the Office of the President has jurisdiction to exercise
administrative disciplinary power over a Deputy Ombudsman
and a Special Prosecutor who belong to the constitutionally-
created Office of the Ombudsman.
The Court's Ruling
Short of claiming themselves immune from the ordinary means
of removal, petitioners asseverate that the President has no
disciplinary jurisdiction over them considering that the Office of
the Ombudsman to which they belong is clothed with
constitutional independence and that they, as Deputy
Ombudsman and Special Prosecutor therein, necessarily bear
the constitutional attributes of said office.
The Court is not convinced.
The Ombudsman's administrative
disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to
conduct administrative investigations proceeds from its
constitutional mandate to be an effective protector of the people
against inept and corrupt government officers and employees,27
and is subsumed under the broad powers "explicitly conferred"
upon it by the 1987 Constitution and R.A. No. 6770.28
The ombudsman traces its origins to the primitive legal order of
Germanic tribes. The Swedish term, which literally means
"agent" or "representative," communicates the concept that has
been carried on into the creation of the modern-day
ombudsman, that is, someone who acts as a neutral
representative of ordinary citizens against government abuses.29
This idea of a people's protector was first institutionalized in the
Philippines under the 1973 Constitution with the creation of the
Tanodbayan, which wielded the twin powers of investigation
and prosecution. Section 6, Article XIII of the 1973 Constitution
provided thus:
Sec. 6. The Batasang Pambansa shall create an office of the
Ombudsman, to be known as Tanodbayan, which shall receive
and investigate complaints relative to public office, including
those in government-owned or controlled corporations, make
appropriate recommendations, and in case of failure of justice
as defined by law, file and prosecute the corresponding criminal,
civil, or administrative case before the proper court or body.
The framers of the 1987 Constitution later envisioned a more
effective ombudsman vested with authority to "act in a quick,
inexpensive and effective manner on complaints against
administrative officials", and to function purely with the
"prestige and persuasive powers of his office" in correcting
improprieties, inefficiencies and corruption in government freed
from the hampering effects of prosecutorial duties.30
Accordingly, Section 13, Article XI of the 1987 Constitution
enumerates the following powers, functions, and duties of the
Office of the Ombudsman, viz:
(1) Investigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust,
improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public
official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any government-
owned or controlled corporation with original charter, to perform
and expedite any act or duty required by law, or to stop,
prevent, and correct any abuse or impropriety in the
performance of duties.
(3) Direct the officer concerned to take appropriate action
against a public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and
subject to such limitations as may be provided by law, to furnish
it with copies of documents relating to contracts or transactions
entered into by his office involving the disbursement or use of
public funds or properties, and report any irregularity to the
Commission on Audit for appropriate action.
(5) Request any government agency for assistance and
information necessary in the discharge of its responsibilities, and
to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the Government and
make recommendations for their elimination and the observance
of high standards of ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such other
powers or perform such functions or duties as may be provided
by law.31
Congress thereafter passed, on November 17, 1989, Republic
Act No. 6770, the Ombudsman Act of 1989, to shore up the
Ombudsman's institutional strength by granting it "full
administrative disciplinary power over public officials and
employees,"32 as follows:
Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. -
The Office of the Ombudsman shall have disciplinary authority
over all elective and appointive officials of the Government and
its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned
or controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary.(Emphasis supplied)
In the exercise of such full administrative disciplinary authority,
the Office of the Ombudsman was explicitly conferred the
statutory power to conduct administrative investigations under
Section 19 of the same law, thus:
Sec. 19. Administrative complaints. - The Ombudsman shall act
on all complaints relating, but not limited, to acts or omissions
which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's
functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment
of facts;
5. Are in the exercise of discretionary powers but for an
improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
While the Ombudsman's authority to discipline administratively
is extensive and covers all government officials, whether
appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the
judiciary, such authority is by no means exclusive. Petitioners
cannot insist that they should be solely and directly subject to
the disciplinary authority of the Ombudsman. For, while Section
21 declares the Ombudsman's disciplinary authority over all
government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman
and a Special Prosecutor. Thus:
Section 8. Removal; Filling of Vacancy.-
xxxx
(2) A Deputy or the Special Prosecutor, may be removed from
office by the President for any of the grounds provided for the
removal of the Ombudsman, and after due process.
It is a basic canon of statutory construction that in interpreting
a statute, care should be taken that every part thereof be given
effect, on the theory that it was enacted as an integrated
measure and not as a hodge-podge of conflicting provisions. A
construction that would render a provision inoperative should be
avoided; instead, apparently inconsistent provisions should be
reconciled whenever possible as parts of a coordinated and
harmonious whole.33Otherwise stated, the law must not be read
in truncated parts. Every part thereof must be considered
together with the other parts, and kept subservient to the
general intent of the whole enactment.34
A harmonious construction of these two apparently conflicting
provisions in R.A. No. 6770 leads to the inevitable conclusion
that Congress had intended the Ombudsman and the President
to exercise concurrent disciplinary jurisdiction over petitioners
as Deputy Ombudsman and Special
Prosecutor, respectively. This sharing of authority goes into the
wisdom of the legislature, which prerogative falls beyond the
pale of judicial inquiry. The Congressional deliberations on this
matter are quite insightful, viz:
x x x Senator Angara explained that the phrase was added to
highlight the fact that the Deputy Tanodbayan may only be
removed for cause and after due process. He added that the
President alone has the power to remove the Deputy
Tanodbayan.
Reacting thereto, Senator Guingona observed that this might
impair the independence of the Tanodbayan and suggested that
the procedural removal of the Deputy Tanodbayan...; and that
he can be removed not by the President but by the Ombudsman.
However, the Chair expressed apprehension that the
Ombudsman and the Deputy Ombudsman may try to protect
one another. The Chair suggested the substitution of the phrase
"after due process" with the words after due notice and hearing
with the President as the ultimate authority.
Senator Guingona contended, however, that the Constitution
provides for an independent Office of the Tanodbayan, and to
allow the Executive to have disciplinary powers over the
Tanodbayan Deputies would be an encroachment on the
independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he was
not averse to the proposal, however, considering the Chair's
observation that vesting such authority upon the Tanodbayan
itself could result in mutual protection, it is necessary that an
outside official should be vested with such authority to effect a
check and balance.35
Indubitably, the manifest intent of Congress in enacting both
provisions - Section 8(2) and Section 21 - in the same Organic
Act was to provide for an external authority, through the person
of the President, that would exercise the power of administrative
discipline over the Deputy Ombudsman and Special Prosecutor
without in the least diminishing the constitutional and plenary
authority of the Ombudsman over all government officials and
employees. Such legislative design is simply a measure of "check
and balance" intended to address the lawmakers' real and valid
concern that the Ombudsman and his Deputy may try to protect
one another from administrative liabilities.
This would not be the first instance that the Office of the
President has locked horns with the Ombudsman on the matter
of disciplinary jurisdiction. An earlier conflict had been settled in
favor of shared authority in Hagad v. Gozo Dadole.36 In said
case, the Mayor and Vice-Mayor of Mandaue City, and a member
of the Sangguniang Panlungsod, were charged before the Office
of the Deputy Ombudsman for the Visayas with violations of R.A.
No. 3019, R.A. No. 6713, and the Revised Penal Code. The
pivotal issue raised therein was whether the Ombudsman had
been divested of his authority to conduct administrative
investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of 1991
(R.A. No. 7160), the pertinent provision of which states:
Sec. 61. Form and Filing of Administrative Complaints.- A
verified complaint against any erring local elective official shall
be prepared as follows:
(a) A complaint against any elective official of a province, a
highly urbanized city, an independent component city or
component city shall be filed before the Office of the President.
The Court resolved said issue in the negative, upholding the
ratiocination of the Solicitor General that R.A. No. 7160 should
be viewed as having conferred on the Office of the President,
but not on an exclusive basis, disciplinary authority over local
elective officials. Despite the fact that R.A. No. 7160 was the
more recent expression of legislative will, no repeal of pertinent
provisions in the Ombudsman Act was inferred therefrom. Thus
said the Court:
Indeed, there is nothing in the Local Government Code to
indicate that it has repealed, whether expressly or impliedly, the
pertinent provisions of the Ombudsman Act. The two statutes
on the specific matter in question are not so inconsistent, let
alone irreconcilable, as to compel us to only uphold one and
strike down the other. Well settled is the rule that repeals of
laws by implication are not favored, and that courts must
generally assume their congruent application. The two laws
must be absolutely incompatible, and a clear finding thereof
must surface, before the inference of implied repeal may be
drawn. The rule is expressed in the maxim, interpretare et
concordare legibus est optimus interpretendi, i.e., every statute
must be so interpreted and brought into accord with other laws
as to form a uniform system of jurisprudence. The fundament is
that the legislature should be presumed to have known the
existing laws on the subject and not to have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied
repeal, and all efforts should be exerted in order to harmonize
and give effect to all laws on the subject.37
While Hagad v. Gozo Dadole38 upheld the plenary power of the
Office of the Ombudsman to discipline elective officials over the
same disciplinary authority of the President under R.A. No. 7160,
the more recent case of the Office of the Ombudsman v.
Delijero39 tempered the exercise by the Ombudsman of such
plenary power invoking Section 23(2)40 of R.A. No. 6770, which
gives the Ombudsman the option to "refer certain complaints to
the proper disciplinary authority for the institution of appropriate
administrative proceedings against erring public officers or
employees." The Court underscored therein the clear legislative
intent of imposing "a standard and a separate set of procedural
requirements in connection with administrative proceedings
involving public school teachers"41 with the enactment of R.A.
No. 4670, otherwise known as "The Magna Carta for Public
School Teachers." It thus declared that, while the Ombudsman's
administrative disciplinary authority over a public school teacher
is concurrent with the proper investigating committee of the
Department of Education, it would have been more prudent
under the circumstances for the Ombudsman to have referred
to the DECS the complaint against the public school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to
discipline his own people and mete out administrative sanctions
upon them, including the extreme penalty of dismissal from the
service. However, it is equally without question that the
President has concurrent authority with respect to removal from
office of the Deputy Ombudsman and Special Prosecutor, albeit
under specified conditions. Considering the principles attending
concurrence of jurisdiction where the Office of the President was
the first to initiate a case against petitioner Gonzales, prudence
should have prompted the Ombudsman to desist from
proceeding separately against petitioner through its Internal
Affairs Board, and to defer instead to the President's assumption
of authority, especially when the administrative charge involved
"demanding and soliciting a sum of money" which constitutes
either graft and corruption or bribery, both of which are grounds
reserved for the President's exercise of his authority to remove
a Deputy Ombudsman.
In any case, assuming that the Ombudsman's Internal Affairs
Board properly conducted a subsequent and parallel
administrative action against petitioner, its earlier dismissal of
the charge of graft and corruption against petitioner could not
have the effect of preventing the Office of the President from
proceeding against petitioner upon the same ground of graft
and corruption. After all, the doctrine of res judicata applies only
to judicial or quasi-judicial proceedings, not to the exercise of
administrative powers.42 In Montemayor v. Bundalian,43 the
Court sustained the President's dismissal from service of a
Regional Director of the Department of Public Works and
Highways (DPWH) who was found liable for unexplained wealth
upon investigation by the now defunct Philippine Commission
Against Graft and Corruption (PCAGC). The Court categorically
ruled therein that the prior dismissal by the Ombudsman of
similar charges against said official did not operate as res
judicata in the PCAGC case.
By granting express statutory
power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.
Section 9, Article XI of the 1987 Constitution confers upon the
President the power to appoint the Ombudsman and his
Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be appointed
by the President from a list of at least six nominees prepared by
the Judicial and Bar Council, and from a list of three nominees
for every vacancy thereafter. Such appointments shall require
no confirmation. All vacancies shall be filled within three months
after they occur.
While the removal of the Ombudsman himself is also expressly
provided for in the Constitution, which is by impeachment under
Section 244 of the same Article, there is, however, no
constitutional provision similarly dealing with the removal from
office of a Deputy Ombudsman, or a Special Prosecutor, for that
matter. By enacting Section 8(2) of R.A. 6770, Congress simply
filled a gap in the law without running afoul of any provision in
the Constitution or existing statutes. In fact, the Constitution
itself, under Section 2, authorizes Congress to provide for the
removal of all other public officers, including the Deputy
Ombudsman and Special Prosecutor, who are not subject to
impeachment.
That the Deputies of the Ombudsman were intentionally
excluded from the enumeration of impeachable officials is clear
from the following deliberations45 of the Constitutional
Commission, thus:
MR. REGALADO. Yes, thank you. On Section 10, regarding the
Ombudsman, there has been concern aired by Commissioner
Rodrigo about who will see to it that the Ombudsman will
perform his duties because he is something like a guardian of
the government. This recalls the statement of Juvenal that while
the Ombudsman is the guardian of the people, "Quis custodiet
ipsos custodies", who will guard the guardians? I understand
here that the Ombudsman who has the rank of a chairman of a
constitutional commission is also removable only by
impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned
with the phrase "have the rank of". We know, for instance, that
the City Fiscal of Manila has the rank of a justice of the
Intermediate Appellate Court, and yet he is not a part of the
judiciary. So I think we should clarify that also and read our
discussions into the Record for purposes of the Commission and
the Committee.46
xxx
THE PRESIDENT. The purpose of the amendment of
Commissioner Davide is not just to include the Ombudsman
among those officials who have to be removed from office only
onimpeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a
question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.47 (Emphasis supplied)
The Power of the President to
Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.
Under the doctrine of implication, the power to appoint carries
with it the power to remove.48 As a general rule, therefore, all
officers appointed by the President are also removable by him.49
The exception to this is when the law expressly provides
otherwise - that is, when the power to remove is expressly
vested in an office or authority other than the appointing power.
In some cases, the Constitution expressly separates the power
to remove from the President's power to appoint. Under Section
9, Article VIII of the 1987 Constitution, the Members of the
Supreme Court and judges of lower courts shall be appointed by
the President. However, Members of the Supreme Court may be
removed after impeachment proceedings initiated by Congress
(Section 2, Article XI), while judges of lower courts may be
removed only by the Supreme Court by virtue of its
administrative supervision over all its personnel (Sections 6 and
11, Article VIII). The Chairpersons and Commissioners of the
Civil Service Commission Section 1(2), Article IX(B), the
Commission on Elections Section 1(2), Article IX(C), and the
Commission on Audit Section 1(2), Article IX(D) shall likewise be
appointed by the President, but they may be removed only by
impeachment (Section 2, Article XI). As priorly stated, the
Ombudsman himself shall be appointed by the President
(Section 9, Article XI) but may also be removed only by
impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy
Ombudsman and Special Prosecutor, Congress simply laid down
in express terms an authority that is already implied from the
President's constitutional authority to appoint the aforesaid
officials in the Office of the Ombudsman.
The Office of the Ombudsman is charged with monumental
tasks that have been generally categorized into investigatory
power, prosecutorial power, public assistance, authority to
inquire and obtain information and the function to adopt,
institute and implement preventive measures.50 In order to
ensure the effectiveness of his constitutional role, the
Ombudsman was provided with an over-all deputy as well as a
deputy each for Luzon, Visayas and Mindanao. However, well
into the deliberations of the Constitutional Commission, a
provision for the appointment of a separate deputy for the
military establishment was necessitated by Commissioner Ople's
lament against the rise within the armed forces of "fraternal
associations outside the chain of command" which have become
the common soldiers' "informal grievance machinery" against
injustice, corruption and neglect in the uniformed service,51
thus:
In our own Philippine Armed Forces, there has arisen in recent
years a type of fraternal association outside the chain of
command proposing reformist objectives. They constitute, in
fact, an informal grievance machinery against injustices to the
rank and file soldiery and perceive graft in higher rank and
neglect of the needs of troops in combat zones. The Reform the
Armed Forces Movement of RAM has kept precincts for pushing
logistics to the field, the implied accusation being that most of
the resources are used up in Manila instead of sent to soldiers
in the field. The Guardians, the El Diablo and other organizations
dominated by enlisted men function, more or less, as grievance
collectors and as mutual aid societies.
This proposed amendment merely seeks to extend the office of
the Ombudsman to the military establishment, just as it
champions the common people against bureaucratic
indifference. The Ombudsman can designate a deputy to help
the ordinary foot soldier get through with his grievance to higher
authorities. This deputy will, of course work in close cooperation
with the Minister of National Defense because of the necessity
to maintain the integrity of the chain of command. Ordinary
soldiers, when they know they can turn to a military
Ombudsman for their complaints, may not have to fall back on
their own informal devices to obtain redress for their grievances.
The Ombudsman will help raise troop morale in accordance with
a major professed goal of the President and the military
authorities themselves. x x x
The add-on now forms part of Section 5, Article XI which reads
as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one over-all Deputy and at least one Deputy each
for Luzon, Visayas and Mindanao. A separate deputy for the
military establishment shall likewise be appointed.(Emphasis
supplied)
The integrity and effectiveness of the Deputy Ombudsman for
the MOLEO as a military watchdog looking into abuses and
irregularities that affect the general morale and professionalism
in the military is certainly of primordial importance in relation to
the President's own role asCommander-in-Chief of the Armed
Forces. It would not be incongruous for Congress, therefore, to
grant the President concurrent disciplinary authority over the
Deputy Ombudsman for the military and other law enforcement
offices.
Granting the President the Power
to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the
President the power to remove a Deputy Ombudsman from
office totally frustrates, if not resultantly negates the
independence of the Office of the Ombudsman is tenuous. The
independence which the Office of the Ombudsman is vested
with was intended to free it from political considerations in
pursuing its constitutional mandate to be a protector of the
people. What the Constitution secures for the Office of the
Ombudsman is, essentially, political independence. This means
nothing more than that "the terms of office, the salary, the
appointments and discipline of all persons under the office" are
"reasonably insulated from the whims of politicians."52 And so it
was that Section 5, Article XI of the 1987 Constitution had
declared the creation of the independent Office of the
Ombudsman, composed of the Ombudsman and his Deputies,
who are described as "protectors of the people" and
constitutionally mandated to act promptly on complaints filed in
any form or manner against public officials or employees of the
Government Section 12, Article XI. Pertinent provisions under
Article XI prescribes a term of office of seven years without
reappointment Section 11, prohibits a decrease in salaries
during the term of office Section 10, provides strict qualifications
for the office Section 8, grants fiscal autonomy Section 14 and
ensures the exercise of constitutional functions Section 12 and
13. The cloak of independence is meant to build up the Office
of the Ombudsman's institutional strength to effectively function
as official critic, mobilizer of government, constitutional
watchdog53 and protector of the people. It certainly cannot be
made to extend to wrongdoings and permit the unbridled acts
of its officials to escape administrative discipline.
Being aware of the constitutional imperative of shielding the
Office of the Ombudsman from political influences and the
discretionary acts of the executive, Congress laid down two
restrictions on the President's exercise of such power of removal
over a Deputy Ombudsman, namely: (1) that the removal of the
Deputy Ombudsman must be for any of the grounds provided
for the removal of the Ombudsman and (2) that there must be
observance of due process. Reiterating the grounds for
impeachment laid down in Section 2, Article XI of the 1987
Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states
that the Deputy Ombudsman may be removed from office for
the same grounds that the Ombudsman may be removed
through impeachment, namely, "culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust." Thus, it cannot be rightly
said that giving the President the power to remove a Deputy
Ombudsman, or a Special Prosecutor for that matter, would
diminish or compromise the constitutional independence of the
Office of the Ombudsman. It is, precisely, a measure of
protection of the independence of the Ombudsman's Deputies
and Special Prosecutor in the discharge of their duties that their
removal can only be had on grounds provided by law.
In Espinosa v. Office of the Ombudsman,54 the Court elucidated
on the nature of the Ombudsman's independence in this wise -
The prosecution of offenses committed by public officers is
vested in the Office of the Ombudsman. To insulate the Office
from outside pressure and improper influence, the Constitution
as well as RA 6770 has endowed it with a wide latitude of
investigatory and prosecutory powers virtually free from
legislative, executive or judicial intervention. This Court
consistently refrains from interfering with the exercise of its
powers, and respects the initiative and independence inherent
in the Ombudsman who, 'beholden to no one, acts as the
champion of the people and the preserver of the integrity of
public service.
Petitioner Gonzales may not be
removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.
Having now settled the question concerning the validity of the
President's power to remove the Deputy Ombudsman and
Special Prosecutor, we now go to the substance of the
administrative findings in OP Case No. 10-J-460 which led to the
dismissal of herein petitioner, Deputy Ombudsman Emilio A.
Gonzales, III.
At the outset, the Court finds no cause for petitioner Gonzales
to complain simply because the OP proceeded with the
administrative case against him despite his non-attendance
thereat. Petitioner was admittedly able to file an Answer in which
he had interposed his defenses to the formal charge against
him. Due process is satisfied when a person is notified of the
charge against him and given an opportunity to explain or
defend himself. In administrative proceedings, the filing of
charges and giving reasonable opportunity for the person so
charged to answer the accusations against him constitute the
minimum requirements of due process.55 Due process is simply
having the opportunity to explain one's side, or an opportunity
to seek a reconsideration of the action or ruling complained of.56
The essence of due process is that a party is afforded reasonable
opportunity to be heard and to submit any evidence he may
have in support of his defense.57 Mere opportunity to be heard
is sufficient. As long as petitioner was given the opportunity to
explain his side and present evidence, the requirements of due
process are satisfactorily complied with because what the law
abhors is an absolute lack of opportunity to be heard.58 Besides,
petitioner only has himself to blame for limiting his defense
through the filing of an Answer. He had squandered a
subsequent opportunity to elucidate upon his pleaded defenses
by adamantly refusing to attend the scheduled Clarificatory
Conference despite notice. The OP recounted as follows -
It bears noting that respondent Deputy Ombudsman Gonzalez
was given two separate opportunities to explain his side and
answer the Formal Charge against him.
In the first instance, respondent was given the opportunity to
submit his answer together with his documentary evidence,
which opportunity respondent actually availed of. In the second
instance, this Office called a Clarificatory Conference on 8
February 2011 pursuant to respondent's express election of a
formal investigation. Despite due notice, however, respondent
Deputy Ombudsman refused to appear for said conference,
interposing an objection based on the unfounded notion that
this Office has prejudged the instant case. Respondent having
been given actual and reasonable opportunity to explain or
defend himself in due course, the requirement of due process
has been satisfied.59
In administrative proceedings, the quantum of proof necessary
for a finding of guilt is substantial evidence,60 which is more than
a mere scintilla and means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.61 The fact, therefore, that petitioner later refused to
participate in the hearings before the OP is not a hindrance to a
finding of his culpability based on substantial evidence, which
only requires that a decision must "have something upon which
it is based."62
Factual findings of administrative bodies are controlling when
supported by substantial evidence.63 The OP's pronouncement
of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of removal
from office was based on the finding of gross neglect of duty
and grave misconduct in office amounting to a betrayal of public
trust, which is a constitutional ground for the removal by
impeachment of the Ombudsman (Section 2, Article XI, 1987
Constitution), and a statutory ground for the President to
remove from office a Deputy Ombudsman and a Special
Prosecutor Section 8(2) of the Ombudsman Act.
The OP held that petitioner's want of care and wrongful conduct
consisted of his unexplained action in directing the PNP-NCR to
elevate P/S Insp. Mendoza's case records to his office; his failure
to verify the basis for requesting the Ombudsman to take over
the case; his pronouncement of administrative liability and
imposition of the extreme penalty of dismissal on P/S Insp.
Mendoza based upon an unverified complaint-affidavit; his
inordinate haste in implementing P/S Insp. Mendoza's dismissal
notwithstanding the latter's non-receipt of his copy of the
Decision and the subsequent filing of a motion for
reconsideration; and his apparent unconcern that the pendency
of the motion for reconsideration for more than five months had
deprived P/S Insp. Mendoza of available remedies against the
immediate implementation of the Decision dismissing him from
the service.
Thus, taking into consideration the factual determinations of the
IIRC, the allegations and evidence of petitioner in his Answer as
well as other documentary evidence, the OP concluded that: (1)
petitioner failed to supervise his subordinates to act with
dispatch on the draft resolution of P/S Insp. Mendoza's motion
for reconsideration and thereby caused undue prejudice to P/S
Insp. Mendoza by effectively depriving the latter of the right to
challenge the dismissal before the courts and prevent its
immediate execution, and (2) petitioner showed undue interest
by having P/S Insp. Mendoza's case endorsed to the Office of
the Ombudsman and resolving the same against P/S Insp.
Mendoza on the basis of the unverified complaint-affidavit of the
alleged victim Christian Kalaw.
The invariable rule is that administrative decisions in matters
within the executive jurisdiction can only be set aside on proof
of gross abuse of discretion, fraud, or error of law.64 In the
instant case, while the evidence may show some amount of
wrongdoing on the part of petitioner, the Court seriously doubts
the correctness of the OP's conclusion that the imputed acts
amount to gross neglect of duty and grave misconduct
constitutive of betrayal of public trust. To say that petitioner's
offenses, as they factually appear, weigh heavily enough to
constitute betrayal of public trust would be to ignore the
significance of the legislature's intent in prescribing the removal
of the Deputy Ombudsman or the Special Prosecutor for causes
that, theretofore, had been reserved only for the most serious
violations that justify the removal by impeachment of the
highest officials of the land.
Would every negligent act or misconduct in the performance of
a Deputy Ombudsman's duties constitute betrayal of public trust
warranting immediate removal from office? The question calls
for a deeper, circumspective look at the nature of the grounds
for the removal of a Deputy Ombudsman and a Special
Prosecutor vis-a-vis common administrative offenses.
Betrayal of public trust is a new ground for impeachment under
the 1987 Constitution added to the existing grounds of culpable
violation of the Constitution, treason, bribery, graft and
corruption and other high crimes. While it was deemed broad
enough to cover any violation of the oath of office,65 the
impreciseness of its definition also created apprehension that
"such an overarching standard may be too broad and may be
subject to abuse and arbitrary exercise by the legislature."66
Indeed, the catch-all phrase betrayal of public trust that referred
to "all acts not punishable by statutes as penal offenses but,
nonetheless, render the officer unfit to continue in office"67 could
be easily utilized for every conceivable misconduct or negligence
in office. However, deliberating on some workable standard by
which the ground could be reasonably interpreted, the
Constitutional Commission recognized that human error and
good faith precluded an adverse conclusion.
MR. VILLACORTA: x x x One last matter with respect to the use
of the words "betrayal of public trust" as embodying a ground
for impeachment that has been raised by the Honorable
Regalado. I am not a lawyer so I can anticipate the difficulties
that a layman may encounter in understanding this provision
and also the possible abuses that the legislature can commit in
interpreting this phrase. It is to be noted that this ground was
also suggested in the 1971 Constitutional Convention. A review
of the Journals of that Convention will show that it was not
included; it was construed as encompassing acts which are just
short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence
of duty, favoritism, and gross exercise of discretionary powers.
I understand from the earlier discussions that these constitute
violations of the oath of office, and also I heard the Honorable
Davide say that even the criminal acts that were enumerated in
the earlier 1973 provision on this matter constitute betrayal of
public trust as well. In order to avoid confusion, would it not be
clearer to stick to the wording of Section 2 which reads: "may
be removed from office on impeachment for and conviction of,
culpable violation of the Constitution, treason, bribery, and other
high crimes, graft and corruption or VIOLATION OF HIS OATH
OF OFFICE", because if betrayal of public trust encompasses the
earlier acts that were enumerated, then it would behoove us to
be equally clear about this last provision or phrase.
MR. NOLLEDO: x x x I think we will miss a golden opportunity if
we fail to adopt the words "betrayal of public trust" in the 1986
Constitution. But I would like him to know that we are amenable
to any possible amendment. Besides, I think plain error of
judgment, where circumstances may indicate that there is good
faith, to my mind, will not constitute betrayal of public trust if
that statement will allay the fears of difficulty in interpreting the
term."68 (Emphasis supplied)
The Constitutional Commission eventually found it reasonably
acceptable for the phrase betrayal of public trust to refer to "acts
which are just short of being criminal but constitute gross
faithlessness against public trust, tyrannical abuse of power,
inexcusable negligence of duty, favoritism, and gross exercise
of discretionary powers."69 In other words, acts that should
constitute betrayal of public trust as to warrant removal from
office may be less than criminal but must be attended by bad
faith and of such gravity and seriousness as the other grounds
for impeachment.
A Deputy Ombudsman and a Special Prosecutor are not
impeachable officers. However, by providing for their removal
from office on the same grounds as removal by impeachment,
the legislature could not have intended to redefine constitutional
standards of culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, as well as
betrayal of public trust, and apply them less stringently. Hence,
where betrayal of public trust, for purposes of impeachment,
was not intended to cover all kinds of official wrongdoing and
plain errors of judgment, this should remain true even for
purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for
impeachment have been made statutory grounds for the
removal by the President of a Deputy Ombudsman and Special
Prosecutor cannot diminish the seriousness of their nature nor
the acuity of their scope. Betrayal of public trust could not
suddenly "overreach" to cover acts that are not vicious or
malevolent on the same level as the other grounds for
impeachment.
The tragic hostage-taking incident was the result of a confluence
of several unfortunate events including system failure of
government response. It cannot be solely attributed then to
what petitioner Gonzales may have negligently failed to do for
the quick, fair and complete resolution of the case, or to his
error of judgment in the disposition thereof. Neither should
petitioner's official acts in the resolution of P/S Insp. Mendoza's
case be judged based upon the resulting deaths at the Quirino
Grandstand. The failure to immediately act upon a party's
requests for an early resolution of his case is not, by itself, gross
neglect of duty amounting to betrayal of public trust. Records
show that petitioner took considerably less time to act upon the
draft resolution after the same was submitted for his appropriate
action compared to the length of time that said draft remained
pending and unacted upon in the Office of Ombudsman
Merceditas N. Gutierrez. He reviewed and denied P/S Insp.
Mendoza's motion for reconsideration within nine (9) calendar
days reckoned from the time the draft resolution was submitted
to him on April 27, 2010 until he forwarded his recommendation
to the Office of Ombudsman Gutierrez on May 6, 2010 for the
latter's final action. Clearly, the release of any final order on the
case was no longer in his hands.
Even if there was inordinate delay in the resolution of P/S Insp.
Mendoza's motion and an unexplained failure on petitioner's part
to supervise his subordinates in its prompt disposition, the same
cannot be considered a vicious and malevolent act warranting
his removal for betrayal of public trust. More so because the
neglect imputed upon petitioner appears to be an isolated case.
Similarly, petitioner's act of directing the PNP-IAS to endorse P/S
Insp. Mendoza's case to the Ombudsman without citing any
reason therefor cannot, by itself, be considered a manifestation
of his undue interest in the case that would amount to wrongful
or unlawful conduct. After all, taking cognizance of cases upon
the request of concerned agencies or private parties is part and
parcel of the constitutional mandate of the Office of the
Ombudsman to be the "champion of the people." The factual
circumstances that the case was turned over to the Office of the
Ombudsman upon petitioner's request; that administrative
liability was pronounced against P/S Insp. Mendoza even
without the private complainant verifying the truth of his
statements; that the decision was immediately implemented; or
that the motion for reconsideration thereof remained pending
for more than nine months cannot be simply taken as evidence
of petitioner's undue interest in the case considering the lack of
evidence of any personal grudge, social ties or business
affiliation with any of the parties to the case that could have
impelled him to act as he did. There was likewise no evidence
at all of any bribery that took place, or of any corrupt intention
or questionable motivation.
Accordingly, the OP's pronouncement of administrative
accountability against petitioner and the imposition upon him of
the corresponding penalty of dismissal must be reversed and set
aside, as the findings of neglect of duty or misconduct in office
do not amount to a betrayal of public trust. Hence, the
President, while he may be vested with authority, cannot order
the removal of petitioner as Deputy Ombudsman, there being
no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust.
This is not to say, however, that petitioner is relieved of all
liability for his acts showing less than diligent performance of
official duties. Although the administrative acts imputed to
petitioner fall short of the constitutional standard of betrayal of
public trust, considering the OP's factual findings of negligence
and misconduct against petitioner, the Court deems it
appropriate to refer the case to the Office of the Ombudsman
for further investigation of the charges in OP Case No. 10-J-460
and the imposition of the corresponding administrative
sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his
removal from office, petitioner is entitled to reinstatement to his
former position as Deputy Ombudsman and to the payment of
backwages and benefits corresponding to the period of his
suspension.
The Office of the President is vested
with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been resisting
the President's authority to remove her from office upon the
averment that without the Sandiganbayan's final approval and
judgment on the basis of the PLEBARA, it would be premature
to charge her with acts and/or omissions "tantamount to
culpable violations of the Constitution and betrayal of public
trust," which are grounds for removal from office under Section
8, paragraph (2) of the Ombudsman Act of 1989; and which also
constitute a violation of Section 3, paragraph (e) of Republic Act
No. 3019 (Anti-Graft and Corrupt Practices Act) - causing undue
injury to the Government or giving any private party any
unwarranted benefits, advantage or preference through
manifest partiality, evident bad faith or gross inexcusable
negligence. With reference to the doctrine of prejudicial
procedural antecedent, petitioner Barreras-Sulit asserts that the
propriety of taking and continuing to take administrative
disciplinary proceeding against her must depend on the final
disposition by the Sandiganbayan of the PLEBARA, explaining
that if the Sandiganbayan would uphold the PLEBARA, there
would no longer be any cause of complaint against her; if not,
then the situation becomes ripe for the determination of her
failings.
The argument will not hold water. The incidents that have taken
place subsequent to the submission in court of the PLEBARA
shows that the PLEBARA has been practically approved, and that
the only thing which remains to be done by the Sandiganbayan
is to promulgate a judgment imposing the proper sentence on
the accused Major General Garcia based on his new pleas to
lesser offenses. On May 4, 2010, the Sandiganbayan issued a
resolution declaring that the change of plea under the PLEBARA
was warranted and that it complied with jurisprudential
guidelines. The Sandiganbayan, thereafter, directed the accused
Major General Garcia to immediately convey in favor of the State
all the properties, both real and personal, enumerated therein.
On August 11, 2010, the Sandiganbayan issued a resolution,
which, in order to put into effect the reversion of Major General
Garcia's ill-gotten properties, ordered the corresponding
government agencies to cause the transfer of ownership of said
properties to the Republic of the Philippines. In the meantime,
the Office of the Special Prosecutor (OSP) informed the
Sandiganbayan that an Order70 had been issued by the Regional
Trial Court of Manila, Branch 21 on November 5, 2010 allowing
the transfer of the accused's frozen accounts to the Republic of
the Philippines pursuant to the terms of the PLEBARA as
approved by the Sandiganbayan. Immediately after the OSP
informed the Sandiganbayan that its May 4, 2010 Resolution had
been substantially complied with, Major General Garcia
manifested71 to the Sandiganbayan on November 19, 2010 his
readiness for sentencing and for the withdrawal of the criminal
information against his wife and two sons. Major General
Garcia's Motion to Dismiss,72 dated December 16, 2010 and filed
with the Sandiganbayan, reads:
1.0 The Co-Accused were impleaded under the theory of
conspiracy with the Principal Accused MGen. Carlos F. Garcia
(AFP Ret.), (Principal Accused) with the allegation that the act
of one is the act of the others. Therefore, with the approval by
the Honorable Court of the Plea Bargaining Agreement executed
by the Principal Accused, the charges against the Co-Accused
should likewise be dismissed since the charges against them are
anchored on the same charges against the Principal Accused.
On December 16, 2010, the Sandiganbayan allowed accused
Major General Garcia to plead guilty to the lesser offenses of
direct bribery and violation of Section 4(b), R.A. No. 9160, as
amended. Upon Major General Garcia's motion, and with the
express conformity of the OSP, the Sandiganbayan allowed him
to post bail in both cases, each at a measly amount of
30,000.00.
The approval or disapproval of the PLEBARA by the
Sandiganbayan is of no consequence to an administrative
finding of liability against petitioner Barreras-Sulit. While the
court's determination of the propriety of a plea bargain is on the
basis of the existing prosecution evidence on record, the
disciplinary authority's determination of the prosecutor's
administrative liability is based on whether the plea bargain is
consistent with the conscientious consideration of the
government's best interest and the diligent and efficient
performance by the prosecution of its public duty to prosecute
crimes against the State. Consequently, the disciplining
authority's finding of ineptitude, neglect or willfulness on the
part of the prosecution, more particularly petitioner Special
Prosecutor Barreras-Sulit, in failing to pursue or build a strong
case for the government or, in this case, entering into an
agreement which the government finds "grossly
disadvantageous," could result in administrative liability,
notwithstanding court approval of the plea bargaining
agreement entered into.
Plea bargaining is a process in criminal cases whereby the
accused and the prosecution work out a mutually satisfactory
disposition of the case subject to court approval.73 The essence
of a plea bargaining agreement is the allowance of an accused
to plead guilty to a lesser offense than that charged against him.
Section 2, Rule 116 of the Revised Rules of Criminal Procedure
provides the procedure therefor, to wit:
SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the
accused, with the consent of the offended party and the
prosecutor, may be allowed by the trial court to plead guilty to
a lesser offense which is necessarily included in the offense
charged. After arraignment but before trial, the accused may
still be allowed to plead guilty to said lesser offense after
withdrawing his plea of not guilty. No amendment of the
complaint or information is necessary. (Sec. 4, Cir. 38-98)
Plea bargaining is allowable when the prosecution does not have
sufficient evidence to establish the guilt of the accused of the
crime charged.74 However, if the basis for the allowance of a
plea bargain in this case is the evidence on record, then it is
significant to state that in its earlier Resolution75 promulgated on
January 7, 2010, the Sandiganbayan had evaluated the
testimonies of twenty (20) prosecution witnesses and declared
that "the conglomeration of evidence presented by the ESTELA M. PERLAS-BERNABE
prosecution is viewed by the Court to be of strong character that Associate Justice
militates against the grant of bail." WE CONCUR:
Notwithstanding this earlier ruling by the Sandiganbayan, the MARIA LOURDES P. A. SERENO
OSP, unexplainably, chose to plea bargain with the accused Chief Justice
Major General Garcia as if its evidence were suddenly insufficient ANTONIO T. CARPIO PRESBITERO J. VELASCO,
to secure a conviction. At this juncture, it is not amiss to Associate Justice JR.
emphasize that the "standard of strong evidence of guilt which Associate Justice
is sufficient to deny bail to an accused is markedly higher than
the standard of judicial probable cause which is sufficient to
initiate a criminal case."76Hence, in light of the apparently strong TERESITA J. LEONARDO- ARTURO D. BRION
case against accused Major General Garcia, the disciplining DE CASTRO Associate Justice
authority would be hard-pressed not to look into the whys and Associate Justice
wherefores of the prosecution's turnabout in the case.
The Court need not touch further upon the substantial matters
that are the subject of the pending administrative proceeding
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
against petitioner Barreras-Sulit and are, thus, better left to the
Associate Justice Associate Justice
complete and effective resolution of the administrative case
before the Office of the President.
The challenge to the constitutionality of Section 8(2) of the
Ombudsman Act has, nonetheless, failed to obtain the necessary MARIANO C. DEL ROBERTO A. ABAD
votes to invalidate the law, thus, keeping said provision part of CASTILLO Associate Justice
the law of the land. To recall, these cases involve two distinct Associate Justice
issues: (a) the constitutionality of Section 8(2) of the
Ombudsman Act; and (b) the validity of the administrative
action of removal taken against petitioner Gonzales. While the MARTIN S. VILLARAMA, JOSE PORTUGAL PEREZ
Court voted unanimously to reverse the decision of the OP JR. Associate Justice
removing petitioner Gonzales from office, it was equally divided Associate Justice
in its opinion on the constitutionality of the assailed statutory
provision in its two deliberations held on April 17, 2012 and
JOSE CATRAL MENDOZA BIENVENIDO L. REYES
September 4, 2012. There being no majority vote to invalidate
Associate Justice Associate Justice
the law, the Court, therefore, dismisses the challenge to the
constitutionality of Section 8(2) of the Ombudsman Act in
accordance with Section 2(d), Rule 12 of the Internal Rules of
the Court.
Indeed, Section 4(2), Article VIII of the 1987 Constitution CERTIFICATION
requires the vote of the majority of the Members of the Court I certify that the conclusions in the above Decision had been
actually taking part in the deliberation to sustain any challenge reached in consultation before the case was assigned to the
to the constitutionality or validity of a statute or any of its writer of the opinion of the Court.
provisions. Ma. LOURDES P. A. SERENO
WHEREFORE, in G.R. No. 196231, the decision of the Office Chief Justice
of the President in OP Case No. 10-J-460 isREVERSED and SET
ASIDE. Petitioner Emilio A. Gonzales III is ordered
REINSTATED with payment of backwages corresponding to
the period of suspension effective immediately, even as the CONCURRING OPINION
Office of the Ombudsman is directed to proceed with the CARPIO, J.:
investigation in connection with the above case against Our Constitution does not impart a fixed and rigid concept of
petitioner. In G.R. No. 196232, We AFFIRM the continuation independence among the offices that it creates. While it declares
of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell certain bodies as "'independent", we cannot assume that the
Barreras-Sulit for alleged acts and omissions tantamount to independence of the Ombudsman1 is the same as the
culpable violation of the Constitution and a betrayal of public independence of the Judiciary. Neither is the independence of
trust, in accordance with Section 8(2) of the Ombudsman Act of the Constitutional Commissions the same as that of the National
1989. Economic and Development Authority, the Bangko Sentral ng
The challenge to the constitutionality of Section 8(2) of the Pilipinas or the Commission on Human Rights2. This Court
Ombudsman Act is hereby DENIED. cannot make a "one size fits all" concept of independence
SO ORDERED.
because the Constitution itself differentiates the degree of
independence of these bodies.
In this case, the petitions seek to strike down Section 8(2) of
Republic Act No. 6170 or the Ombudsman Act of 1989 which
delegates to the President the power to remove a Deputy
Ombudsman or the Special Prosecutor "for any of the grounds
provided for the removal of the Ombudsman, and after due
process." The provision allegedly compromises the
independence of the Ombudsman by imposing an external
disciplinary authority, namely the President.
I agree with the ponencia that Section 8(2) of the Ombudsman
Act does not violate the Constitution. The constitutional principle
of independence does not obviate the possibility of a check from
another body. After all, one of the constitutive principles of our
constitutional structure is the system of checks and balances- a
check that is not within a body, but outside of it. This is how our
democracy operates - on the basis of distrust.3
I.
Section 2, Article XI of the 1987 Constitution prescribes how all
public officers and employees, both impeachable and non-
impeachable, may be removed. Section 2 provides:
The President, the Vice-President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed from office, on impeachment for,
and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be
removed from office as provided by law, but not by
impeachment. (Boldfacing and underscoring supplied)
Section 2 of Article XI consists of two parts. The first sentence
identifies the public officials who are subject to removal only by
impeachment. The second sentence explicitly leaves to the
discretion of Congress, through an implementing law, the
removal of all other public officers and employees. In other
words, by stating that all other non- impeachable officers and
employees "may be removed from office as provided by law" -
the Constitution expressly grants to Congress the power to
determine the manner and cause of removal, including who will
be the disciplinary authority, of non-impeachable officers and
employees. Clearly, Section 8(2) of the Ombudsman Act is valid
and constitutional since Congress is expressly empowered to
legislate such law pursuant to Section 2, Article XI of the
Constitution.
The original text of Section 24 of Article XI did not include the
second sentence.5 Its subsequent inclusion was only meant to
exclude "all other public officers and employees" from removal
through impeachment. Otherwise, Congress would have the
plenary power to remove public officers and employees through
impeachment or through any other mode of removal. Thus, at
the outset, the framers of the 1987 Constitution saw no need to
textualize this power- for it was already taken for granted as
part of the plenary power of Congress. However, to limit this
plenary power of Congress, the framers expressly excluded
impeachment as a mode of removing "all other public officers
and employees."
This Court has repeatedly declared that the Constitution
"confers plenary legislative x x x powers subject only to
limitations provided in the Constitution."6 Thus, in inserting the
second sentence in Section 8(2), Article XI of the 1987
Constitution, the framers intended to limit impeachment only to
public officers enumerated in the first sentence of Section 2:
MR. REGALADO. I propose to add in Section 2 as a last sentence
thereof as already amended the following: ALL OTHER PUBLIC
OFFICERS AND EMPLOYEES MAY BE REMOVED FROM OFFICE
AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT. The reason
for the amendment is this: While Section 2 enumerates the
impeachable officers, there is nothing that will prevent the
legislature as it stands now from providing also that other
officers not enumerated therein shall also be removable only by
impeachment, and that has already happened.
Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree,
justices of the Sandiganbayan may be removed only by
impeachment, unlike their counterparts in the then Court of
Appeals. They are, therefore, a privileged class on the level of
the Supreme Court. In the Committee on Constitutional
Commissions and Agencies, there are many commissions which
are sought to be constitutionalized - if I may use the phrase -
and the end result would be that if they are constitutional
commissions, the commissioners there could also be removed
only by impeachment. What is there to prevent the Congress
later - because of the lack of this sentence that I am seeking to
add - from providing that officials of certain offices, although
nonconstitutional, cannot also be removed except by
impeachment?
THE PRESIDING OFFICER (Mr. Treas). What does the
Committee say on the proposed amendment of Commissioner
Regalado?
MR. MONSOD. May we ask Commissioner Regalado a few
questions?
Does this mean that with this provision, the other officers in the
case of the Sandiganbayan would not be removable by
impeachment?
MR. REGALADO. For the present and during the interim and until
the new Congress amends P.D. No. 1606, that provision still
stands. But the proposed amendment will not prevent the
legislature from subsequently repealing or amending that
portion of the law. Also, it will prevent the legislature from
providing for favoured public officials as not removable except
by impeachment.
MR. MONSOD. Mr. Presiding Officer, the Committee is willing to
accept the amendment of Commissioner Regalado.
THE PRESIDING OFFICER (Mr. Treas). The proposed
amendment of Commissioner Regalado has been accepted by
the Committee.7 (Emphasis supplied)
Clearly, Congress has the power and discretion to delegate to
the President the power to remove a Deputy Ombudsman or the
Special Prosecutor under Section 8(2) of the Ombudsman Act.
While the 1987 Constitution already empowers the Ombudsman
to investigate8 and to recommend to remove9 a Deputy
Ombudsman and the Special Prosecutor, this does not preclude
Congress from providing other modes of removal.
The Deputy Ombudsman and the Special Prosecutor are not
among the impeachable officers under the 1987 Constitution.
Thus, as expressly provided in Section 2, Article XI of the
Constitution, they "may be removed from office as provided by
law." Congress, pursuant to this constitutional provision and in
the exercise of its plenary power, enacted the Ombudsman Act,
conferring on the President the power to remove the Deputy
Ombudsman and the Special Prosecutor as provided in Section
8(2) of the Ombudsman Act.
However, the Ombudsman Act also grants the Ombudsman the
authority to remove a Deputy Ombudsman and the Special
Prosecutor through the general grant of disciplinary authority
over all elective and appointive officials, in reiteration of Sections
13(1) and (2), Article XI of the Constitution:10
Section 21. Officials Subject to Disciplinary Authority;
Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of
the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.11
In view of Section 8(2) and Section 21 of the Ombudsman Act,
the legislative intent is to grant concurrent jurisdiction to the
President and the Ombudsman in the removal of the Deputy
Ombudsman and the Special Prosecutor. An "endeavor should
be made to harmonize the provisions of a law x x x so that each
shall be effective."12 This is not a hollow precept of statutory
construction. This is based not only on democratic principle but
also on the separation of powers, that this Court should not be
so casual in voiding the acts of the popularly elected legislature
unless there is a clear violation of the Constitution.
II.
When the 1987 Constitution speaks of "independent" bodies, it
does not mean complete insulation from other offices. The text,
history and structure of the Constitution contemplate checks and
balances that result in the expansion, contraction or
concurrence of powers, a coordinate functioning among
different bodies of government that is not limited to the
executive, legislative and judicial branches, but includes the
"independent" constitutional bodies. The very structure of our
government belies the claim that "independent" bodies
necessarily have exclusive authority to discipline its officers.
Not all constitutional declarations are enforceable by courts.13
We declared some of them as not self-executing such as the
Declaration of Principles and State Policies under Article II.14
However, the independence of constitutional bodies is a
judicially enforceable norm. Textually, the Constitution does not
define the term "independent" and thus, the contours of this
principle may not be immediately clear. The question therefore
arises: to what extent can this Court enforce the independence
of bodies like the Ombudsman? Can we impose a particular
notion of independence, amidst the silence of the constitutional
text, to the extent of nullifying an act of Congress?
The answer lies in the Constitution itself which circumscribes the
exercise of judicial power. The Constitution clearly intended
different degrees of independence among the "independent"
bodies that it created. For some, such as the National Economic
and Development Authority, Bangko Sentral ng Pilipinas and
Commission on Human Rights, the operationalization of
independence is constitutionally committed to the discretion of
Congress.15 For the others, like the Civil Service Commission,
the Commission on Audit and the Commission on Elections,
legislative power is decidedly more limited,16 with express
guarantees like fiscal autonomy17 and rule-making power on
pleadings and practice.18
The Constitution does not enumerate in detail all the possible
legislative powers. The Constitution has vested Congress with
plenary powers- as the general repository of the police power of
the State- to fill-in gaps in the Constitution for the governance
of this country. However, when the Constitution expressly
empowers Congress to do a specific act - like expressly
empowering Congress to provide the mode of removal of all
non-impeachable government officers and employees, there can
be no doubt whatsoever that Congress can enact such a law.
Any reading of the 1987 Constitution does not warrant the
conclusion that all bodies declared by the Constitution as
"independent" have exclusive disciplinary authority over all their
respective officials and employees. Unlike the Judiciary where
such exclusivity is expressly provided for in the Constitution,19
there is no reason to read such provision in the Ombudsman
where the Constitution is silent. On the contrary, the
constitutional provision that non-impeachable officers and
employees "may be removed from office as provided by law"
removes any doubt that Congress can determine the mode of
removal of non-impeachable officers and employees of
"independent" bodies other than the Judiciary. An
"independent" body does not have exclusive disciplinary
authority over its officials and employees unless the Constitution
expressly so provides, as in the case of the Judiciary.
There are other constitutional bodies declared "independent,"20
but disciplinary authority is statutorily lodged somewhere else.21
Under the New Central Bank Act (Republic Act No. 7653), the
President also has the power to remove a member of the
Monetary Board on specified grounds.22 There is nothing
anomalous in this mode of removal because the Constitution
expressly authorizes the legislature to provide for such mode of
removal. This Court cannot enforce a speculative notion of
independence - that an "independent" body has exclusive
disciplinary authority - for doing so would be a species of judicial
legislation or a disguised constitutional amendment.
III.
This Court has no business limiting the plenary power of
Congress unless the Constitution expressly so limits it. The fact
that different constitutional bodies are treated differently under
the Constitution shows that independence is a broadly
delineated norm. With this level of generality, the constitutional
meaning of independence is only that of independent decision-
making that is free from partisanship and political pressures. It
does not even mean fiscal autonomy unless the Constitution
says so.23 Thus, it is generally left to Congress to particularize
the meaning of independence, subject only to specific
constitutional limitations. Nothing in the Constitution tells us that
an "independent" body necessarily has exclusive disciplinary
authority over its officials and employees.
A completely "independent" body is alien to our constitutional
system. There is no office that is insulated from a possible
correction from another office. The executive, legislative and
judicial branches of government operate through the system of
checks and balances. All independent constitutional bodies are
subject to review by the courts. A fiscally autonomous body is
subject to audit by the Commission on Audit, and Congress
cannot be compelled to appropriate a bigger budget than that
of the previous fiscal year.24
Section 8(2) of the Ombudsman Act is consistent with our
system of checks and balances. The provision is a narrow form
of delegation which empowers the President to remove only two
officers in the Office of the Ombudsman, i.e. the Deputy
Ombudsman and the Special Prosecutor. The proposition that
an external disciplinary authority compromises the
Ombudsman's independence fails to recognize that the
Constitution expressly authorizes Congress to determine the
mode of removal of all non-impeachable officers and employees.
It also fails to recognize that under a system of checks and
balances, an external disciplinary authority is desirable and is
often the norm.
In disciplinary cases, the 1987 Constitution empowers the
Ombudsman to direct the proper disciplinary authority "to take
appropriate action against a public official or employee at fault,
and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith."25
This is further implemented by the Ombudsman Act which
provides that "at its option, the Office of the Ombudsman may
refer certain complaints to the proper disciplinary authority for
the institution of appropriate administrative proceedings against
erring public officers or employees, which shall be determined
within the period prescribed in the civil service law."26
Clearly, the Ombudsman is not constitutionally empowered to
act alone. Congress can even authorize the Department of
Justice or the Office of the President to investigate cases within
the jurisdiction of the Ombudsman. Similarly, the Ombudsman
can investigate public officers and employees who are under the
disciplinary authority of heads of other bodies or agencies.27 The
cases cited in the ponencia, i.e. Hagad v. Gozo-Dadofe28 and
Office of the Ombudsman v. Delijero, Jr.29 - illustrate that
concurrent jurisdiction does not impair the independence of the
Ombudsman. Duplication of functions may not at all times
promote efficiency, but it is not proscribed by the Constitution.
Accordingly, I vote to DENY the petition in G.R. No. 196232,
and to GRANT in part the petition in G.R. No. 196231, in
accordance with the ponencia of Justice Estela M. Perlas-
Bemabe.
ANTONIO T. CARPIO
Associate Justice
CONCURRING AND DISSENTING OPINION
BRION, J.:
The present case consists of two consolidated petitions, G.R.
No. 196231 and G.R. No. 196232.
I concur with the ponencia's main conclusion that petitioner
Emilio Gonzales III (in G.R. No. 196231, referred to as Gonzales
or petitioner Gonzales) is not guilty of the charges leveled
against him. But with due respect, I disagree with the
conclusion that Section 8(2) of Republic Act (RA) No.
6770 (which empowers the President to remove a
Deputy Ombudsman or a Special Prosecutor) is
constitutionally valid.
The petition of Wendell Barreras-Sulit (G.R. No. 196232,
referred to as Sulit or petitioner Sulit) commonly shares with
G.R. No. 196231 the issue of the constitutionality discussed
below, the administrative proceedings against Sulit should be
halted and nullified as she prays for in her petition.
G.R. No. 196231 is a petition questioning the validity of the
administrative proceedings conducted by the Office of the
President against Gonzales who was the Deputy Ombudsman
for Military and Other Law Enforcement Offices.
The action against him before the Office of the President
consists of an administrative charge for Gross Neglect of Duty
and/or Inefficiency in the Performance of Official Duty (under
Section 22, Rule XIV of the Omnibus Rules Implementing Book
V of Executive Order No. 292 and other pertinent Civil Service
laws, rules and regulations), and of Misconduct in Office (under
Section 3 of the Anti-Graft and Corrupt Practices Act [RA No.
3019).1 The administrative case against Gonzales was
recommended by the Incident Investigation and Review
Committee (IIRC) in connection with the hijacking of a tourist
bus resulting in the death of the hijacker and of some
passengers; the hijacker then accused Gonzales of illegal
exactions and of delaying the disposition of his Ombudsman
case.
On March 31, 2011, the Office of the President found2 Gonzales
guilty of Gross Neglect of Duty and Grave Misconduct
constituting betrayal of public trust, and penalized him with
dismissal from office.
In G.R. No. 196232, petitioner Sulit, a Special Prosecutor in
the Office of the Ombudsman, seeks to halt and nullify the
ongoing administrative proceedings conducted by the Office of
the President against her. Sulit was charged with violating
Section 3(e) of RA No. 3019 and for having committed acts
and/or omissions tantamount to culpable violations of the
Constitution, and betrayal of public trust.
In behalf of the Office of the Ombudsman, Sulit entered into a
plea bargain with Major General Carlos F. Garcia who had been
charged with Plunder and Money Laundering. Because of the
plea bargain, Sulit was required to show cause why an
administrative case should not be filed against her. She raised
in her Written Explanation of March 24, 2011 the impermissibility
and impropriety of administrative disciplinary proceedings
against her because the Office of the President has no
jurisdiction to discipline and penalize her.3
The two petitions - G.R. No. 196231 and G.R. No. 196232 - share
a common issue: whether the President has the power to
discipline or remove a Deputy Ombudsman or a Special
Prosecutor in the Office of the Ombudsman from office. While
the ponencia resolves this issue in favor of the President, it is
my considered view that the power to discipline or
remove an official of the Office of the Ombudsman
should be lodged only with the Ombudsman and not
with the Office of the President, in light of the
independence the Constitution guarantees the Office of
the Ombudsman.
The Office of the Ombudsman is a very powerful government
constitutional agency tasked to enforce the accountability of
public officers. Section 21 of The Ombudsman Act of 1989 (RA
No. 6770) concretizes this constitutional mandate by providing
that:
Section 21. Official Subject to Disciplinary Authority; Exceptions.
- The Office of the Ombudsman shall have disciplinary authority
over all elective and appointive officials of the Government and
its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned
or controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary. (Emphasis ours)
The Ombudsman's duty to protect the people from unjust, illegal
and inefficient acts of all public officials emanates from Section
12, Article XI of the Constitution. These broad powers include
all acts of malfeasance, misfeasance, and nonfeasance of all
public officials, including Members of the Cabinet and key
Executive officers, during their tenure.
To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and
influence of officialdom and partisan politics4 and from fear of
external reprisal by making it an "independent" office. Section
5, Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each
for Luzon, Visayas, and Mindanao. A separate Deputy for the
military establishment may likewise be appointed. (Emphasis
ours)
It is in this light that the general authority of the Office of the
President to discipline all officials and employees the President
has the authority to appoint,5 should be considered.
In more concrete terms, subjecting the officials of the Office of
the Ombudsman to discipline and removal by the President,
whose own alter egos and officials in the Executive Department
are subject to the Ombudsman's disciplinary authority, cannot
but seriously place at risk the independence of the Ombudsman
and her officials, and must consequently run counter to the
independence that the Constitution guarantees the Office of the
Ombudsman. What is true for the Ombudsman must be equally
true, not only for her Deputies but for other lesser officials of
that Office who act as delegates and agents of the Ombudsman
in the performance of her duties. The Ombudsman can hardly
be expected to place her complete trust in subordinate officials
who are not as independent as she is, if only because they are
subject to pressures and controls external to her Office. This
need for complete trust is true in an ideal setting and truer still
in a young democracy like the Philippines where graft and
corruption is still a major problem for the government. For these
reasons, Section 8(2) of RA No. 67706 (providing that the
President may remove a Deputy Ombudsman) clearly runs
against the constitutional intent and should, thus, be declared
void.
Significantly, the possible unconstitutional effects of Section
8(2) of RA No. 6770 were not unknown to the framers of this
law. These possibilities were brought by then Senator Teofisto
Guingona to the framers' attention as early as the congressional
deliberations:
Reacting thereto, Senator Guingona observed that this might
impair the independence of the Tanodbayan and suggested that
the procedural removal of the Deputy Tanodbayan xxx be not
by the President but by the Ombudsman.
xxxx
Senator Guingona contended, however, that the Constitution
provides for an independent Office of the Tanodbayan, and to
allow the Executive to have disciplinary powers over the
Tanodbayan Deputies would be an encroachment on the
independence of the Tanodbayan.7
Despite Senator Guingona's objections, Congress passed RA No.
6770 and the objected Section 8(2) into law.8While it may be
claimed that the congressional intent is clear after the Guingona
objection was considered and rejected by Congress, such clarity
and the overriding congressional action are not enough to
insulate the assailed provision from constitutional infirmity if
one, in fact, exists. This is particularly true if the infirmity relates
to a core constitutional principle - the independence of the
Ombudsman - that belongs to the same classification as the
constitutionally-guaranteed independence that the Judiciary
enjoys. To be sure, neither the Executive nor the Legislative can
create the power that Section 8(2) grants where the Constitution
confers none.9 When exercised authority is drawn from a
vacuum, more so when the authority runs counter to
constitutional intents, this Court is obligated to intervene under
the powers and duties granted and imposed on it by Article VIII
of the Constitution.10The alternative for the Court is to be remiss
in the performance of its own constitutional duties.
More compelling and more persuasive than the reason
expressed in the congressional deliberations in discerning
constitutional intent should be the deliberations of the
Constitutional Commission itself on the independence of the
Ombudsman. Commissioner Florenz Regalado of the
Constitutional Commission openly expressed his concerns on the
matter, fearing that any form of presidential control over the
Office of the Ombudsman would diminish its independence:
In other words, Madam President, what actually spawned or
caused the failure of the justices of the Tanodbayan insofar as
monitoring and fiscalizing the government offices are concerned
was due to two reasons: First, almost all their time was taken
up by criminal cases; and second, since they were under the
Office of the President, their funds came from that office. I have
a sneaking suspicion that they were prevented from making
administrative monitoring because of the sensitivity of the then
head of that office, because if the Tanodbayan would make the
corresponding reports about failures, malfunctions or omissions
of the different ministries, then that would reflect upon the
President who wanted to claim the alleged confidence of the
people.
xxxx
It is said here that the Tanodbayan or the Ombudsman would
be a toothless or a paper tiger. That is not necessarily so. If he
is toothless, then let us give him a little more teeth by making
him independent of the Office of the President because it is now
a constitutional creation, so that the insidious tentacles of
politics, as has always been our problem, even with PARGO,
PCAPE and so forth, will not deprive him of the opportunity to
render service to Juan de la Cruz. x x x. There is supposed to
be created a constitutional office- constitutionalized to free it
from those tentacles of politics- and we give it more teeth and
have the corresponding legislative provisions for its budget, not
a budget under the Office of the President.
xxxx
x x x. For that reason, Madam President, I support this
committee report on a constitutionally created Ombudsman and
I further ask that to avoid having a toothless tiger, there should
be further provisions for statistical and logistical support.11
(Emphases ours.)
The intention of the Constitutional Commission to keep the
Office of the Ombudsman independent from the President could
not have been made any clearer than when Commissioner
Christian Monsod vehemently rejected the recommendation of
Commissioner Blas Ople who had suggested to the Committee
that the Office of the Ombudsman be placed under the
Executive:
MR. OPLE. x x x
May I direct a question to the Committee? xxx Will the
Committee consider later an amendment xxx, by way of
designating the office of the Ombudsman as a constitutional arm
for good government, efficiency of the public service and the
integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be
accountable to no one on the pretext that it is a constitutional
body?
MR. MONSOD. The Committee discussed that during our
committee deliberations and when we prepared the report, it
was the opinion of the Committee- and I believe it still is- that it
may not contribute to the effectiveness of this office of the
Ombudsman precisely because many of the culprits in
inefficiency, injustice and impropriety are in the executive
department. Therefore, as we saw the wrong implementation of
the Tanodbayan which was under the tremendous influence of
the President, it was an ineffectual body and was reduced to the
function of a special fiscal.
The whole purpose of the our proposal is precisely to separate
those functions and to produce a vehicle that will give true
meaning to the concept of Ombudsman. Therefore, we regret
that we cannot accept the proposition.12
The statements made by Commissioner Monsod emphasized a
very logical principle: the Executive power to remove and
discipline members of the Office of the Ombudsman, or to
exercise any power over them, would result in an absurd
situation wherein the Office of the Ombudsman is given the duty
to adjudicate on the integrity and competence of the very
persons who can remove or suspend its members. Equally
relevant is the impression that would be given to the public if
the rule were otherwise. A complainant with a grievance against
a high-ranking official of the Executive, who appears to enjoy
the President's favor, would be discouraged from approaching
the Ombudsman with his complaint; the complainant's
impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure,
such an impression would erode the constitutional intent of
creating an Office of the Ombudsman as champion of the people
against corruption and bureaucracy.
These views, to my mind, demolish the concern raised in
Congress to justify Section 8(2) of RA No. 6770- i.e., that vesting
the authority to remove the Tanodbayan on the Ombudsman
would result in mutual protection.13 This congressional concern,
too, is a needless one as it is inconsistent with the system of
checks and balance that our legal structure establishes.
At the practical constitutional level, the Tanodbayan (now the
Office of the Special Prosecutor) cannot protect the Ombudsman
who is an impeachable officer, as the power to remove the
Ombudsman rests with Congress as the representative of the
people.14 On the other hand, should the Ombudsman attempt
to shield the Tanodbayan from answering for any violation, the
matter may be raised with the Supreme Court on appeal15 or by
Special Civil Action for Certiorari,16 whichever may be applicable,
in addition to the impeachment proceedings to which the
Ombudsman may be subjected. For its part, the Supreme Court
is a non-political independent body mandated by the
Constitution to settle judicial and quasi-judicial disputes, whose
judges and employees are not subject to the disciplinary
authority of the Ombudsman and whose neutrality would be less
questionable. In these lights, the checks and balance principle
that underlies the Constitution can be appreciated to be fully
operational.
I find it significant that the Office of the Ombudsman is not the
only governmental body labeled as "independent" in our
Constitution. The list includes the Judiciary,17 the Constitutional
Commissions (Commission on Elections, Commission on Audit,
and the Civil Service Commission),18 the Commission on Human
Rights,19 a central monetary authority,20 and, to a certain extent,
the National Economic Development Authority.21 These bodies,
however, are granted various degrees of "independence" and
these variations must be clarified to fully understand the context
and meaning of the "independent" status conferred on the office
of the Ombudsman.
The independence enjoyed by the Office of the Ombudsman, by
the Constitutional Commissions, and by the Judiciary shares
certain characteristics - they do not owe their existence to any
act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy.22
For most, if not for all of these "independent" bodies, the
framers of the Constitution intended that they be insulated from
political pressure. As a checks and balance mechanism, the
Constitution, the Rules of Court, and their implementing laws
provide measures to check on the "independence" granted to
the Constitutional Commissions and the Office of the
Ombudsman; the Supreme Court, as the final arbiter of all legal
questions, may review the decisions of the Constitutional
Commissions and the Office of the Ombudsman, especially when
there is grave abuse of discretion.23 Of course, foisted over the
Members of the Supreme Court is the power of impeachment
that Congress has the authority to initiate, and carry into its
logical end a meritorious impeachment case.24 Such is the
symmetry that our Constitution provides for the harmonious
balance of all its component and "independent" parts.
In Bengzon v. Drilon,25 we ruled on the fiscal autonomy of the
Judiciary, and ruled against the interference that the President
may bring. In doing so, we maintained that the independence,
and the flexibility of the Judiciary, the Constitutional
Commissions and the Office of the Ombudsman are crucial to
our legal system:
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed
in the discharge of their constitutional duties. The imposition of
restrictions and constraints on the manner the independent
constitutional offices allocate and utilize the funds appropriated
for their operations is anathema to fiscal autonomy and violative
not only the express mandate of the Constitution but especially
as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our
constitutional system is based.
As in the case of the Office of the Ombudsman, the
constitutional deliberations explain the Constitutional
Commissions' need for independence.
In the deliberations for the 1973 Constitution, the delegates
amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one
created by law, based on the precept that the effectivity of this
body is dependent on its freedom from the tentacles of politics:
DELEGATE GUNIGUNDO x x x
(b) because we believe that the Civil Service created by law has
not been able to eradicate the ills and evils envisioned by the
framers of the 1935 Constitution; because we believe that the
Civil Service created by law is beholden to the creators of that
law and is therefore not politics-free, not graft-free and not
corruption-free; because we believe that as long as the law is
the reflection of the will of the ruling class, the Civil Service that
will be created and recreated by law will not serve the interest
of the people but only the personal interest of the few and the
enhancement of family power, advancement and prestige.26
The deliberations of the 1987 Constitution on the Commission
on Audit, on the other hand, highlighted the developments in
the past Constitutions geared towards insulating the
Commission on Audit from political pressure:
MR. JAMIR. x x x
When the 1935 Constitution was enacted, the auditing office
was constitutionalized because of the increasing necessity of
empowering the auditing office to withstand political pressure.
Finding a single Auditor to be quite insufficient to withstand
political pressure, the 1973 Constitution established the
Commission consisting of three members- a chairman and two
commissioners.27
In Brillantes, Jr. v. Yorac,28 we pointedly emphasized that the
Constitutional Commissions, which have been characterized
under the Constitution as "independent," are not under the
control of the President, even if they discharge functions that
are executive in nature. Faced with a temporary presidential
appointment in the Commission on Elections, this Court
vigorously denied the President the authority to interfere in
these constitutional bodies:
The lack of a statutory rule covering the situation at bar is no
justification for the President of the Philippines to fill the void by
extending the temporary designation in favor of the respondent.
This is still a government of laws and not of men. The problem
allegedly sought to be corrected, if it existed at all, did not call
for presidential action. The situation could have been handled
by the members of the Commission on Elections themselves
without the participation of the President, however well-
meaning.
xxxx
x x x. But while conceding her goodwill, we cannot sustain her
act because it conflicts with the Constitution.
The Commission on Human Rights, also created by the
Constitution as an "independent" office,29 enjoys lesser
independence since it was not granted fiscal autonomy, in the
manner fiscal autonomy was granted to the offices above-
discussed. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire
to keep the Commission independent from the executive branch
and other political leaders:
MR. MONSOD. We see the merits of the arguments of
Commissioner Rodrigo. If we explain to him our concept, he can
advise us on how to reconcile his position with ours. The position
of the committee is that we need a body that would be able to
work and cooperate with the executive because the
Commissioner is right. Many of the services needed by this
commission would need not only the cooperation of the
executive branch of the government but also of the judicial
branch of government. This is going to be a permanent
constitutional commission over time. We also want a
commission to function even under the worst circumstance
when the executive may not be very cooperative. However, the
question in our mind is: Can it still function during that time?
Hence, we are willing to accept suggestions from Commissioner
Rodrigo on how to reconcile this. We realize the need for
coordination and cooperation. We also would like to build in
some safeguards that it will not be rendered useless by an
uncooperative executive.
xxxx
MR. GARCIA. Thank you very much, Madame President.
Before we address the procedural question which Commissioner
Rodrigo requested, I would like to touch on a very important
question which I think is at the very heart of what we are trying
to propose- the independence of this Commission on Human
Rights. xxx
When I was working as a researcher for Amnesty International,
one of my areas of concern was Latin America. I headed a
mission to Colombia in 1980. I remember the conversation with
President Julio Cesar Turbay Ayala and he told me that in
Colombia, there were no political prisoners. This is a very
common experience when one goes to governments to
investigate human rights. From there, we proceeded to the
Procuraduria General to the Attorney-General, to the Ministry of
Justice, to the Ministry of Defense, and normally the answers
that one will get are: "There are no political prisoners in our
country"; "Torture is not committed in this country." Very often,
when international commissions or organizations on human
rights go to a country, the most credible organizations are
independent human rights bodies. Very often these are private
organizations, many of which are prosecuted, such as those we
find in many countries in Latin America. In fact, what we are
proposing is an independent body on human rights, which would
provide governments with credibility precisely because it is
independent of the present administration. Whatever it says on
the human rights situation will be credible because it is not
subject to pressure or control from the present political
leadership.
Secondly, we all know how political fortunes come and go.
Those who are in power yesterday are in opposition today and
those who are in power today may be in the opposition
tomorrow. Therefore, if we have a Commission on Human
Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could
stand up to any power, to defend the rights of individuals
against arrest, unfair trial, and so on.30 (Emphases ours.)
Similarly, the Constitution grants Congress the authority to
establish an independent central monetary authority.31Under
these terms, this office is not constitutionally-created nor does
it possess fiscal autonomy. When asked what "independence"
means in this provision, Commissioner Bernardo Villegas again
reiterated the intention of various framers for it to be
independent of the executive branch:
MR. VILLEGAS. No, this is a formula intended to prevent what
happened in the last regime when the fiscal authorities sided
with the executive branch and were systematically in control of
monetary policy. This can lead to disastrous consequences.
When the fiscal and the monetary authorities of a specific
economy are combined, then there can be a lot of
irresponsibility. So, this word "independent" refers to the
executive branch.32
The National Economic Development Authority, nominally
designated as "independent," differs from the other similarly-
described agencies because the constitutional provision that
provides for its creation immediately puts it under the control of
the executive.33 This differing shade of "independence" is
supported by the statements made during the constitutional
deliberations:
MR. MONSOD. I believe that the word "independent" here, as
we answered Commissioner Azcuna, was meant to be
independent of the legislature because the NEDA under the
present law is under the Office of the President.
MR. COLAYCO. Yes. In other words, the members of that agency
are appointed by the President?
MR. VILLEGAS. That is right.
MR. MONSOD. Yes.
MR. VILLEGAS. The President heads the NEDA.34
Commissioner Monsod continues by explaining that they did not
constitutionalize the National Economic Development Authority,
and, in accordance with the second paragraph of Section 9,
Article XII of the 1987 Constitution, even left to Congress the
discretion to abolish the office:
MR. MONSOD. During the Committee hearings, there were
proposals to change the composition of the governing body not
only of the Monetary Board but also of the NEDA. That is why if
we notice in this Article, we did not constitutionalize the NEDA
anymore unlike in the 1973 Constitution. We are leaving it up to
Congress to determine whether or not the NEDA is needed later
on. The idea of the Committee is that if we are going for less
government and more private sector initiative, later on it may
not be necessary to have a planning agency. Thus, it may not
be necessary to constitutionalize a planning agency anymore.
So this provision leaves room for the legislature not only to
revise the composition of the governing body, but also to
remove the NEDA once it is no longer needed in its judgment.35
These deliberative considerations make it abundantly clear that
with the exception of the National Economic Development
Authority, the independent constitutional bodies were
consistently intended by the framers to beindependent from
executive control or supervision or any form of political
influence.
This perspective abundantly clarifies that the cases cited in the
ponencia - Hon. Hagad v. Hon. Gozodadole36 and Office of the
Ombudsman v. Delijero, Jr.37 - are not in point. These cases
refer to the disciplinary authority of the Executive over a public
school teacher and a local elective official. Neither of these
officials belongs to independent constitutional bodies whose
actions should not even be tainted with any appearance of
political influence.
In my view, the closest and most appropriate case to cite as
exemplar of independence from executive control is Bautista v.
Senator Salonga,38 where this Court categorically stated, with
respect to the independent Commission on Human Rights, that
the tenure of its Commissioners could not be placed under the
discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize
how an office conceived and created by the Constitution to be
independent - as the Commission on Human Rights - and vested
with the delicate and vital functions of investigating violations of
human rights, pinpointing responsibility and recommending
sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when the tenure
in office of its Chairman and Members is made dependent on
the pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for
the Commission on Human Rights has to be declared
unconstitutional.39
Also in point as another "independence" case is Atty. Macalintal
v. Comelec,40 this time involving the Commission on Elections,
which gave the Court the opportunity to consider even the mere
review of the rules of the Commission on Elections by Congress
a "trampling" of the constitutional mandate of independence of
these bodies. Obviously, the mere review of rules places
considerably less pressure on these bodies than the Executive's
power to discipline and remove key officials of the Office of the
Ombudsman. The caution of, and the strong words used by, this
Court in protecting the Commission on Elections' independence
should - in addition to those expressed before the Constitutional
Commissions and in Congress in the course of framing RA No.
6770 - speak for themselves as reasons to invalidate the more
pervasive authority granted by Section 8(2) of RA No. 6770.
Thus, in the case of independent constitutional bodies, with the
exception of the National Economic Development Authority, the
principle that the President should be allowed to remove those
whom he is empowered to appoint (because of the implied
power to dismiss those he is empowered to appoint41) should
find no application. Note that the withholding of the power
to remove is not a stranger to the Philippine
constitutional structure.
For example, while the President is empowered to appoint the
Members of the Supreme Court and the judges of the lower
courts,42 he cannot remove any of them; the Members of the
Supreme Court can be removed only by impeachment and the
lower court judges can be removed only by the Members of the
Supreme Court en banc. This is one of the modes by which the
independence of the Judiciary is ensured and is an express edge
of the Judiciary over the other "independent" constitutional
bodies.
Similarly, the President can appoint Chairmen and
Commissioners of the Constitutional Commissions, and the
Ombudsman and her Deputies,43 but the Constitution
categorically provides that the Chairmen of the Constitutional
Commissions and the Ombudsman can only be removed by
impeachment.44 The absence of a constitutional provision
providing for the removal of the Commissioners and Deputy
Ombudsmen does not mean that Congress can empower the
President to discipline or remove them in violation of the
independence that the Constitution textually and expressly
provides.45 As members of independent constitutional bodies,
they should be similarly treated as lower court judges, subject
to discipline only by the head of their respective offices and
subject to the general power of the Ombudsman to dismiss
officials and employees within the government for cause. No
reason exists to treat them differently.
While I agree with Justice Carpio's opinion that the Constitution
empowered Congress to determine the manner and causes for
the removal of non-impeachable officers, we cannot simply
construe Section 2, Article XI of the Constitution to be a blanket
authority for Congress to empower the President to remove all
other public officers and employees, including those under the
independent constitutional bodies. When the Constitution states
that Congress may provide for the removal of public officers and
employees by law, it does not mean that the law can violate the
provisions and principles laid out in the Constitution. The
provision reads:
The President, the Vice-President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be
removed from office as provided by law, but not by
impeachment. (emphasis and underscoring ours)
The deliberations of the Constitutional Commissions, as quoted
by Justice Carpio, explain an important aspect of the second
sentence of Section 2, Article XI of the Constitution- that it was
not the intent to widen the discretion of Congress in providing
for the removal of a public officer; the intent was to limit its
powers. The second sentence of Section 2, Article XI was
provided to limit the public officers who can only be removed by
impeachment. This limitation is one made necessary by past
experiences. In an earlier law, Presidential Decree No. 1606,
Congress provided, by law, that justices of the Sandiganbayan
(who are not included in the enumeration) may only be removed
by impeachment. Commissioner Regalado insisted on adding the
second sentence of Section 2, Article XI of the Constitution to
prevent Congress from extending the more stringent rule of
"removal only by impeachment" to favored public officers.46
Ultimately, the question now before this Court goes back to
whether the Constitution intended to allow political entities, such
as the Executive, to discipline public officers and employees of
independent constitutional bodies. If this is the intent, then
Congress cannot have the authority to place the power to
remove officers of these "independent constitutional bodies"
under executive disciplinary authority unless otherwise
expressly authorized by the Constitution itself. I firmly take this
position because the drafters repeatedly and painstakingly
drafted the constitutional provisions on the independent
constitutional bodies to separate them from executive control.
Even after the other delegates made it clear that the easier path
would be to place these bodies under the control of the
President, the majority nevertheless voted against these moves
and emphatically expressed its refusal to have these offices be
made in any way under the disciplinary authority of the
Executive.
This constitutional intent rendered it necessary for the
Constitution to provide the instances when executive
interference may be allowed. In the case of the National
Economic Development Authority, the Constitution explicitly
provided that the President may exert control over this body.
The Constitution was also explicit when it empowered the
President to appoint the officers of the other "independent"
bodies, and even then, this power was qualified: (1) in the cases
of the Constitutional Commissions, by giving the chairmen and
the members staggered terms of seven years to lessen the
opportunity of the same President to appoint the majority of the
body;47 and
(2) in the case of the Ombudsman and his Deputies, by limiting
the President's choice from a list prepared by the Judicial and
Bar Council.48
Thus, we cannot maintain a light and cavalier attitude in our
constitutional interpretation and merely say that the
"independence" of the constitutional bodies is whatever
Congress would define it at any given time. In the cases I have
cited - Bautista v. Senator Salonga,49 Atty. Macalintal v.
Comelec,50 and Brillantes, Jr. v. Yorac51 - this Court did not
merely leave it to the Legislature or the Executive to freely
interpret what "independence" means. We recognized in the
term a meaning fully in accord with the intent of the
Constitution.
This intent was the same guiding light that drove this Court to
rule that the President cannot determine the tenure of the
Commission on Human Rights Chairman and Members; that
Congress cannot enact a law that empowers it to review the
rules of the Commission on Elections; and that the President
cannot even make interim appointments in the Commission on
Elections.
After halting these lesser infractions based on the constitutional
concept of "independence," it would be strange - in fact, it would
be inconsistent and illogical for us - to rule at this point that
Congress can actually allow the President to exercise the power
of removal that can produce a chilling effect in the performance
of the duties of a Special Prosecutor or of the Deputy
Ombudsman.
I draw attention to the fact that Sections 9, 10, 11 and 12, Article
XI of the Constitution do not only refer to the Ombudsman, but
also to the Ombudsman's Deputies. Section 9 provides for their
appointment process. While the President can appoint them, the
appointment should be made from the nominations of the
Judicial and Bar Council and the appointments do not require
confirmation. Section 10 gives the Ombudsman and the
Deputies the same rank and salary as the Chairmen and
Members of the Constitutional Commission. The salary may not
be diminished during their term. Section 11 disqualifies them
from reappointment and participation in the immediately
succeeding elections, in order to insulate them further from
politics. Section 12 designates the Ombudsman and the
Deputies as "protectors of the people" and directs them to act
promptly on all complaints against public officials or
employees.1wphi1
Under this structure providing for terms and conditions fully
supportive of "independence," it makes no sense to insulate
their appointments and their salaries from politics, but not their
tenure. One cannot simply argue that the President's power to
discipline them is limited to specified grounds, since the mere
filing of a case against them can result in their suspension and
can interrupt the performance of their functions, in violation of
Section 12, Article XI of the Constitution. With only one term
allowed under Section 11, a Deputy Ombudsman or Special
Prosecutor removable by the President can be reduced to the
very same ineffective Office of the Ombudsman that the framers
had foreseen and carefully tried to avoid by making these offices
independent constitutional bodies.
At the more practical level, we cannot simply turn a blind eye or
forget that the work of the Office of the Ombudsman, like the
Constitutional Commissions, can place the officers of the
Executive branch and their superior in a bad light. We cannot
insist that the Ombudsman and his Deputies look into all
complaints, even against those against Executive officials, and
thereafter empower the President to stifle the effectiveness of
the Ombudsman and his or her Deputies through the grant of
disciplinary authority and the power of removal over these
officers. Common and past experiences tell us that the President
is only human and, like any other, can be displeased. At the very
least, granting the President the power of removal can be
counterproductive, especially when other less political officers,
such as the Ombudsman and the Judiciary, already have the
jurisdiction to resolve administrative cases against public officers
under the Office of the Ombudsman.
Given the support of the Constitution, of the Records of the
Constitutional Commission, and of previously established
jurisprudence, we cannot uphold the validity of Section 8(2) of
RA No. 6770 merely because a similar constitutionally-
unsupported provision exists under RA No. 7653. Under our
legal system, statutes give way to the Constitution, to the intent
of its framers and to the corresponding interpretations made by
the Court. It is not, and should not be, the other way around.
I join the ponente in declaring that the Deputy Ombudsmen and
Special Prosecutors should not escape accountability for their
wrongdoing or inefficiency. I differ only in allowing the
President, an elective official whose position is primarily political,
to discipline or remove members of independent constitutional
bodies such as the Office of the Ombudsman. Thus, the
administrative proceedings conducted by the Office of the
President against petitioner Gonzales should be voided and
those against petitioner Sulit discontinued.
Lastly, while I find the proceedings before the Office of the
President constitutionally infirm, nothing in this opinion should
prevent the Ombudsman from conducting the proper
investigations and, when called for, from filing the proper
administrative proceedings against petitioners Gonzales and
Sulit. In the case of Gonzales, further investigation may be made
by the Ombudsman, but only for aspects of his case not
otherwise covered by the Court's Decision.
ARTURO D. BRION
Associate Justice
DISSENTING OPINION
ABAD, J.:
This case is not too complicated. Section 8(2) of Republic Act
(R.A.) 6770 gave the Office of the President (OP) the power to
investigate and remove from office the Deputies Ombudsman
and the Special Prosecutor who work 9irectly under the
supervision and control of the Ombudsman. Using this power,
the OP investigated and found petitioner Emilio Gonzales III,
Deputy I Ombudsman . for the Military and Other Law
Enforcement Offices, guilty of gross neglect in handling the
pending case against a police officer who subsequently hijacked
a tourist bus. Using the same power, the OP initiated a similar
investigation of a case against petitioner Wendell Barreras-Sulit,
the Special Prosecutor, for alleged corruption, she having
allowed her I office to enter into a plea-bargaining agreement
with Major General Carlos F. Garcia who had been charged with
plunder.
Gonzales and Sulit filed separate petitions, the first in G.R.
196231 and the second in G.R. 196232. Gonzales assails the
correctness of the OP decision that dismissed him from the
service. Both challenges the constitutionality of Section 8(2) of
R.A. 6770 which gave the President the power to investigate
and remove them.
The ponencia would have the Court uphold the constitutionality
of Section 8(2 , R.A. 6770 that empowers the President to
investigate and remove Deputy Ombudsman Gonzales and
Special Prosecutor Sulit from office. It argues that, although the
Constitution expressly provides for the removal of (e
Ombudsman himself, which is by impeachment, it fails to
provide a procedure for the removal from office of a Deputy
Ombudsman or Special Prosecutor. By enacting Section 8(2) of
R.A. 6770, Congress simply filled in a void that the Constitution
itself authorizes.
The ponencia relies on Section 2, Article XI of the Constitution
for support:
Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office
on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but
not by impeachment. (Emphasis ours)
The removal from office of a Deputy Ombudsman or a Special
Prosecutor, says the ponencia, falls in the category of public
officers and employees that "may be removed from office as
provided by law."
True enough, the above Section 2 above provides that only the
President, the Vice-President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed by impeachment and that other
public officers and employees may be removed by law. But this
cannot literally be taken to mean that Congress may authorize
the President to investigate and remove all non-impeachable
public officers and employees.
Surely, Congress may not authorize the President to exercise
this power against those that the Constitution expressly or
implicitly shields from his influence or intervention. For instance,
Congress cannot authorize the President to remove lower court
judges, although they are not subject to impeachment, since
such authority is reserved by the Constitution to the Supreme
Court.1 Further, as the Court held in Bautista v. Salonga,2
although the Chairman and Members of the Commission on
Human Rights are not impeachable public officials, their terms
cannot be made to depend on the pleasure of the President
since the Constitution perceives them as exercising functions
independent of him.
Actually, there was no existing "void" in the matter of the
removal of the Deputy Ombudsman and the Special Prosecutor
when Congress enacted R.A. 6770. Administrative Code of 1987,
then in force, already vested in heads of offices, including the
Ombudsman, the power to investigate and take disciplinary
action against all officers and employees under him, the Deputy
Ombudsman and the Special Prosecutor included.3
In subsequently enacting R.A. 6770, Congress in effect removed
such power of investigation and removal, insofar as the Deputy
Ombudsman and the Special Prosecutor were concerned, from
the Ombudsman and transferred the same to the President. As
will shortly be shown below, such wresting of power from the
Ombudsman is an appalling blow to his constitutionally
mandated independence from the influence and threats of the
other departments and agencies of government.
Section 5, Article XI of the 1987 Constitution provides:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy, and at least one Deputy each
for Luzon, Visayas and Mindanao. A separate Deputy for the
military establishment may likewise be appointed. (Emphasis
supplied)
The Constitution has reasons for making the Office of the
Ombudsman "independent." Its primordial duty is to investigate
and discipline all elective and appointive government officials.4
Specifically, Section 13, Article XI of the Constitution vests in
that Office the absolute power to investigate any malfeasance,
misfeasance, or non-feasance of public officers or employees.
This function places it a notch higher than other grievance-
handling, investigating bodies. With the exception of those who
are removable only by impeachment, the Office of the
Ombudsman can investigate and take action against any
appointive or elected official for corruption in office, be they
Congressmen, Senators, Department Secretaries, Governors,
Mayors, or Barangay Captains.
Thus, the Office of the Ombudsman needs to be insulated from
the pressures, interventions, or vindictive acts of partisan
politics.5 The Court has itself refrained from interfering with the
Office of the Ombudsman's exercise of its powers. It is not the
Court but the Ombudsman who is the champion of the people
and the preserver of the integrity of public service.6 The Office
of the Ombudsman, which includes the Deputy Ombudsman and
the Special Prosecutor, cannot be beholden to or fearful of any
one, the President included.7
The power to impeach is a function of check and balance under
the Constitution. But the power to remove "public officers and
employees" from office, in the realm of administrative law, is a
function of supervision, if not control. Keeping the Deputies in
the Office of the Ombudsman and the Special Prosecutor
independent as the Constitution commands and subjecting them
to the President's control or supervision are incompatible ideas.
To say that the Deputy Ombudsman and the Special Prosecutor
will remain independent of the President notwithstanding that
he can investigate and remove them from office at any time is
the equivalent of saying that monkeys grow out of trees. If there
is any one that the holder of public office fears, it is that person
who has the power to remove him.
If the Court were to uphold the Constitutionality of Section 8(2)
of R.A. 6770, then the Deputy Ombudsman and the Special
Prosecutor will be able to openly defy the orders of the
Ombudsman and disregard his policies without fear of
disciplinary sanction from him. The law makes them subject to
investiga4on and removal only by the President. It is him they
have to obey and will obey. Surely, this is not what the
Constitution contemplates in an "independent" Office of the
Ombudsman.
The present cases are precisely in point. The Ombudsman did
not herself appear to regard Gonzales and Sulit's actuations in
the subject matters of the cases against them worthy of
disciplinary action. But, given that the Secretary of Justice, an
alter ego of the President, took an opposite view, the President
deigned to investigate them. In effect, the President is able to
substitute his judgment for that of the Ombudsman in a matter
concerning function of the latter's office. This gives the President
a measure of control over the Ombudsman's work.
From here on, if the Court chooses to uphold the
constitutionality of Section 8(2 of R.A. 6770, the Deputy
Ombudsman and the Special Prosecutor should be consulting
the Office of the President or the Secretary of Justice before
they act in any case in which the latter has an interest. This is
the ludicrous and unpalatable situation that the framers of the
Constitution envisaged and sought to avoid when they granted
the Office of the Ombudsman independence from others who
wield governmental powers.8
I, therefore, vote to grant the petitions, declare Section 8(2) of
Republic Act 6770 that empowers the President to remove the
Deputy Ombudsman and the Special Prosecutor unconstitutional
and void, annul the decision of he Office of the President against
Deputy Ombudsman Emilio Gonzales III dated March 31, 2011,
and permanently enjoin that Office from further proceeding with
the administrative case against Special Prosecutor Wendell
Barreras-Sulit.
ROBERTO A. ABAD
Associate Justice