G.R. No.

149036 April 2, 2002

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 Flore1ntino A. Tuason, Jr. ("Tuason" for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco 1 ("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 for confirmation to the Commission on
Appointments.10 They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001 11 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.
G.R. No. L-25895 July 23, 1971

FELIZARDO S. PACETE, petitioner,

vs.
THE SECRETARY OF THE COMMISSION ON APPOINTMENTS CONGRESS OF THE PHILIPPINES, THE
SECRETARY OF JUSTICE and THE DISBURSING OFFICER OF THE DEPARTMENT OF
JUSTICE, respondents.

Petitioner in his own behalf.

Office of the Solicitor General for respondents.

FERNANDO, J.:

The question raised in this mandamus and prohibition proceeding, whether the filing of a motion for reconsideration
with the Commission on Appointments, without its being thereafter acted on, suffices to set at naught a confirmation
duly made of an ad interim appointment, is not a new one. That was put to us in Altarejos v. Molo.1 As set forth in the
opinion of the Chief Justice, the answer must be in the negative. The confirmation stands; it must be given force and
effect. As we decided then, so we do now. As a consequence, petitioner, as will be more fully explained, has made
out a case for mandamus and prohibition. He is entitled to the remedies prayed for.

The facts are undisputed. In his suit for mandamus and prohibition filed with this Court on April 4, 1966, petitioner
Felizardo S. Pacete alleged that he was appointed by the then President of the Philippines on August 31, 1964 as
Municipal Judge of Pigcawayan, Cotabato. He assumed office on September 11, 1964 and discharged his duties as
such. As his appointment was made during the recess of Congress, it was submitted to the Commission on
Appointments at its next session in 1965. On May 20 of that year, he was unanimously confirmed. As a matter of fact,
two days later, he was sent a congratulatory telegram by the then Senate President Ferdinand E. Marcos, who was
likewise the Chairman of the Commission on Appointments.2 More than nine months after such confirmation, to be
exact on February 7, 1966, the then Secretary of Justice, whom he likewise included in his petition, through the Judicial
Superintendent, advised petitioner to vacate his position as municipal judge, the ground being that his appointment
had been by-passed. Petitioner was taken by surprise and sought clarification from the principal respondent, the then
Secretary of the Commission on Appointments.3 He was informed that on May 21, 1965, a day after his confirmation,
one of the members of the Commission on Appointments, the then Senator Rodolfo Guanzon, wrote to its Chairman
stating that he was filing a motion for the reconsideration of the confirmation of the appointment of petitioner as
municipal judge of Pigcawayan, Cotabato, in view of derogatory information which he had received. 4 Respondent
Secretary of the Commission on Appointments thus was led to notify the then Secretary of Justice accordingly,
following what he considered to be the prevailing practice of such body that the mere presentation of such letter
"automatically vacated the confirmation of the appointment in question ... ."5 Respondent Secretary of Justice through
the Judicial Superintendent then advised petitioner that he should vacate his position as municipal judge, as he had
not been duly confirmed. The Disbursing Officer of the Department of Justice was likewise named respondent as he
had, as a consequence, withheld petitioner's salaries.6

Petitioner would buttress his plea for prohibition against the enforcement of the directive of respondent Secretary of
Justice for him to vacate his position and mandamus to compel respondent Secretary of the Commission on
Appointments to issue to him the certificate of confirmation on the ground that the letter of the then Senator Guanzon,
even on the assumption that it was a motion to reconsider an appointment duly confirmed, was without force and
effect as it was not approved by the body as a whole. It is his contention that the confirmation of his appointment had
become final and executory upon the adjournment of the fourth regular session of the Fifth Congress at midnight of
May 21, 1965.7 He further submitted "that the power to approve or disapprove appointments is conferred by the
Constitution on the Commission on Appointments as a body and not on the members individually. The Commission
exercises this power thru the vote of the majority of the members present at a quorum as provided by Section 10 of
its Rules. Once an appointment is approved by that majority, the approval becomes an act of the Commission and it
cannot be changed, voided, vacated or set aside except by the same Commission acting thru the required majority.
A mere motion to reconsider it, unless approved by said majority, has no force and effect. To contend otherwise is to
make the will of a single member prevail over the will of the Commission and to make that member more powerful
than the very Commission of which he is only a part."8

In a resolution dated April 13, 1966, this Court required respondents to answer such petition. In the answer of
respondent Secretary of the Commission filed on May 18, 1966, the dismissal of the suit was prayed for on the ground
that there was a recall of the confirmation of petitioners appointment upon the filing of the motion for reconsideration
by Senator Ganzon. It was likewise alleged as a special defense that there was no infringement of the Constitution,
the question involved being merely one of interpretation or construction of the rules of the Commission involving its
internal business which cannot be made a subject of judicial inquiry.9 The respondent Secretary of Justice as well as
respondent Disbursing Officer of the Department of Justice, in the answer filed on their behalf on May 21, 1966 by the
then Solicitor General, now Associate Justice, Antonio P. Barredo, admitted the facts, but sought the dismissal of the
petition on the ground that with the notification of respondent Secretary of the Commission on Appointments that
petitioner's appointment was not duly confirmed, respondent Secretary of Justice had no alternative but to give it full
faith and credence coming as it did from the agency entrusted by the Constitution with the power to confirm. 10

At the hearing scheduled on July 20, 1966, the parties after arguing were given an additional period of ten days within
which to submit memoranda of authorities. In petitioner's memorandum submitted on August 1, 1966, it was contended
that his confirmation became final and irrevocable upon the adjournment of the fourth regular session of the Fifth
Congress on May 21, 1965, as no rule of the Commission as to a motion for reconsideration could have the force and
effect of defeating the constitutional provision that an ad interim appointment is effective "until disapproved by the
Commission on Appointments or until the adjournment of the next session of the
Congress." 11The memorandum submitted for the respondents squarely disputed such contention on the view that
there could be no confirmation in the constitutional sense until a motion for reconsideration had been turned down,
invoking at the same time the principle of the respect to be accorded the actuation of an independent constitutional
agency like the Commission on Appointments.

As was noted, the controlling principle is supplied by Altarejos v. Molo, 12 which interpreted Rule 21 of the Revised
Rules of the Commission on Appointments, which reads: "Resolution of the Commission on any appointment may be
reconsidered on motion by a member presented not more than one (1) day after their approval. If a majority of the
members present concur to grant a reconsideration, the appointment shall be reopened and submitted anew to the
Commission. Any motion to reconsider the vote on any appointment may be laid on the table, this shall be a final
disposition of such a motion." Our holding was that the mere filing of a motion for reconsideration did not have the
effect of setting aside a confirmation. There was a need for its being duly approved. Hence, as set forth at the outset,
petitioner must prevail.

1. Altarejos v. Molo was an original action for mandamus to compel respondent therein as Secretary of the
Commission on Appointments to issue a certificate of confirmation of petitioner's appointment as Provincial Assessor
of Masbate. He was extended an ad interim appointment on July 24, 1964. He took his oath of office and qualified as
such on August 1, 1964. His appointment was then submitted to the Commission on Appointments during the regular
session of Congress in 1965. It was confirmed by the Commission on Appointments on May 19, 1965. On same day,
a member thereof, Congressman Jose Aldeguer, filed with its Secretary, respondent Molo, a motion for
reconsideration. The next day, there was a motion by the then Senator Francisco Rodrigo that all pending motions be
laid on the table. It was approved. Then came the adjournment on May 20, 1965. Subsequently, about a week later,
Congressman Aldeguer withdrew his motion for reconsideration. 13

This Court gave full attention to the argument that motion for reconsideration of Congressman Aldeguer on May 19,
1965 had the effect of recalling the confirmation of petitioner's appointment and that, accordingly, it should be
considered non-existent. It rejected it. The Chief Justice, who spoke for the Court, explained why: "This pretense is
devoid of merit. Respondent's theory would give to the mere filing of a motion for reconsideration the effect which it
would have if the motion were approved, and hence, would dispense with the necessity of such approval, for which
the concurrence of a majority of the members present is necessary. It is inconsistent with Rule 21 of the Revised
Rules of the Commission, reading: "... Resolution of the Commission on any appointment may be reconsidered on
motion by a member presented not more than none * (1) day after their approval. If a majority of the members present concur to grant a
reconsideration, the appointment shall be reopened and submitted anew to the Commission. Any motion to reconsider the vote on any appointment may be laid on
the table, this shall be a final disposition of such a motion." 14 His opinion continued: "Pursuant to this provision, the vote of a majority of the members present in
favor of the motion for reconsideration is necessary to "reopen" the appointment and, hence, to "recall" its confirmation - and to require a resubmission of the
appointment for confirmation." 15 Moreover, in holding that this Court "cannot escape the conclusion that petitioner's appointment as Provincial Assessor of Masbate"
had been duly confirmed, the Chief Justice likewise noted the categorical answer of the Chairman of the Commission on Appointments to a question by Senator
Almendras as to the effect of motions for reconsideration unacted upon after adjournment. Thus: "In case of an adjournment sine die, the motions for reconsideration
are considered as not approved and therefore the motion for reconsideration are not valid for of any effect whatsoever." 16 When the question was repeated by
Senator Almendras, who did not want to leave any doubt on the matter, this was the reply of the Chairman: "The ruling of the Chair is reiterated. In case of an
adjournment sine die, the period for filing the motion for reconsideration having expired, under Sec. 22, then the motion for reconsideration not having been acted
upon is not approved and, therefore, has no effect whatsoever. The confirmation, therefore, will stand." 17

Nothing can be clearer, therefore, than that this Court is committed to the principle that a mere motion for
reconsideration to a confirmation duly made which is not approved cannot have the effect of setting aside such
confirmation, a principle that is based not merely on the express language of Rule 21, but a reflection of the settled
interpretation of the Commission on Appointments speaking through its Chairman. While on certain aspects not
material, the facts of this case may be distinguished, from Altajeros v. Molo, there being no motion to lay on the table
and no withdrawal of such motion for reconsideration, the principle that calls for application cannot be any different.
What is decisive is that a confirmation duly made is not nullified simply by a motion for reconsideration being filed,
without its being voted upon and approved.

2. The Altarejos ruling possesses the merit of interpreting Rule 21 of the Commission on Appointments conformably
to the letter and spirit of the constitutional provisions on the appointing power of the President. The first one reads:
"The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of
the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and air forces from
the rank of captain or commander, and all other officers of the Government whose appointments are not herein
otherwise provided for, and those whom he may be authorized by law to appoint; 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." 18 The other
provision is worded, thus: "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." 19

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 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." 20

The constitutional requirement is clear. There must either be a rejection by the Commission on Appointments or
nonaction on its part. No such thing happened in this case. Petitioner, as pointed out, had instead in his favor a
unanimous vote of confirmation. He could thus invoke constitutional protection. For respondents to argue that the
mere filing of a motion for reconsideration did suffice to set it aside, even in the absence of any further action, is, as
stressed by petitioner, to lose sight of what is provided in the Constitution. That would be moreover tantamount to
imparting to a move of a single member of a collective body a decisive weight. It is bad enough if the minority were to
prevail. A one-man rule, which is the effect of what respondent Secretary of the Commission on Appointments
contends, is infinitely worse. It is indefensible in principle and pernicious in operation. It can find no shelter in the
constitutional prescription. Rather it makes a mockery of what is therein ordained. Petitioner's stand is thus
unassailable.

3. Nor does the insistence of respondent Secretary of the Commission on Appointments, in his answer, that the
question involved is beyond the jurisdiction of this Court, elicit approval. It would extend the boundaries of the political
question doctrine beyond its legitimate limits. The courts are called upon to see to it that private rights are not invaded.
Thus even legislative acts and executive orders are not beyond the pale of judicial scrutiny. Certainly there is nothing
sacrosanct about a rule of the Commission on Appointments, especially so, when as in this case, a construction
sought to be fastened on it would defeat the right of an individual to a public office. It certainly can be inquired into in
an appropriate case, although the utmost deference should be paid to the interpretation accorded it by the Commission
on Appointments itself. In the terse language of Justice Brandeis, speaking of the rules of the United States Senate,
which, under its Constitution, has the task of confirmation: "As the construction to be given to the rule affects persons
other than members of the Senate, the question presented is of necessity a judicial one." 21The task becomes
unavoidable when claims arising from the express language of the Constitution are pressed upon the judiciary. So it
is in this case. It is a truism that under the circumstances, what cannot be ignored is the primacy of what the
fundamental law ordains.

Such an approach, it is heartening to note, is implicit in the memorandum on behalf of respondent Secretary of Justice,
submitted by the then Solicitor General Barredo. Thus: "Although the Commission On Appointments is not a power in
our tripartite system of government, it is to all intents and purposes, like the Electoral Tribunals, when acting within
the limits of its authority, an independent organ. (Cf. Angara vs. Electoral Commission, 63 Phil. 139) Its actuation in
the exercise of its power to approve appointments submitted to it by the President of the Philippines is exempt from
judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the powers
as will constitute a denial of due process. (Cf. Morero vs. Bocar, 37 O.G. 445)." 22 As due process is impressed with
both substantive and procedural significance, the scope of judicial inquiry is thus not unduly limited.

WHEREFORE, petitioner is entitled to the writ of mandamus and the Secretary of the Commission on Appointments
is commanded to issue the certificate of confirmation prayed for by petitioner. The incumbent Secretary of Justice is
prohibited from giving any further force and effect to the Department of Justice directive of February 7, 1966 advising
petitioner to vacate his position as municipal judge in view of the communication received from then Secretary of the
Commission on Appointments, inasmuch as the right of petitioner to perform his functions as municipal judge of
Pigcawayan, Cotabato is in accordance with law, his confirmation having been duly confirmed. No pronouncement as
to costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Villamor and Makasiar, JJ., concur.

Barredo and Teehankee, JJ., took no part.

Dizon and Castro JJ., are on official leave.

G.R. No. L-25577 March 15, 1966

ONOFRE P. GUEVARA, petitioner,

vs.
RAOUL M. INOCENTES, respondent.

Ambrosia Padilla and Onofre Guevara for the petitioner.

Office of the Solicitor General for the respondent.

BAUTISTA ANGELO, J.:

This decision is written in keeping with the statement we made in our resolution dated February 16, 1966.

Petitioner was extended an ad interim appointment as Undersecretary of Labor by the former Executive on November
18, 1965, having taken his oath of office on November 25 of the same year, and considering that the ad
interim appointment for the same position extended to respondent by the incumbent Executive on January 23, 1966
is invalid in spite of Memorandum Circular No. 8 issued by the latter on the same date declaring all ad
interim appointments made by the former Executive as having lapsed with the adjournment of the special session of
Congress at about midnight of January 22, 1966, petitioner brought before this Court the instant petition for quo
warranto seeking to be declared the person legally entitled to said office of Undersecretary of Labor.

The petition is predicated on the following grounds: (1) under Article VII, Section 10(4) of the Constitution,
petitioner's ad interim appointment is valid and permanent and may only become ineffective either upon express
disapproval by the Commission on Appointments or upon the adjournment of the regular session of Congress of 1966;
(2) here there has been no express disapproval by the Commission on Appointments because the same has never
been constituted during the special session called by President Marcos in his Proclamation No. 2, series of 1966; and
(3) there has been no adjournment of the Congress as contemplated in the Constitution because (a) the aforesaid
special session was suspended by the House on Saturday, January 22, 1966 at 10:55 p.m. to be resumed on Monday,
January 24, 1966 at 10:00 a.m.; (b) the resolution approved by the Senate on January 23, 1966 at past 2:00 a.m. for
adjournment sine die is not the adjournment contemplated in Article VII, Section 10(a) of our Constitution; (c) the
suspension by the House or the adjournment by the Senate to resume the session on January 24, 1966 at 10:00 a.m.
meant the end of the special session and the start of the regular session as a continuous session without any
interruption; and (d) the phrase "until the next adjournment of the Congress" must be related with the phrase "until
disapproval by the Commission on Appointments" so that the adjournment contemplated should refer to a regular
session during which the Commission on Appointments may be organized and allowed to discharge its functions as
such.

Respondent, on the other hand, set up the following defenses: (1) petitioner's ad interim appointment lapsed when
Congress adjourned its last special session called under Proclamation No. 2 of President Marcos; (2) an ad
interim appointment ceases to be valid after each term of Congress and so petitioner's appointment must have lapsed
as early as December 30, 1965; (3) petitioner's ad interim appointment as well as others made under similar
conditions, is contrary to morals, good customs and public policy, and hence null and void; and (4) petitioner's
appointment is void in the light of the doctrine laid down in Rodriguez, Jr. vs. Quirino, G.R. No. L-19800 October 28,
1953.

After due deliberation, the Court resolved that the ad interim appointment extended to petitioner on November 18,
1965 by the former Executive lapsed when the special session of Congress adjourned sine die at about midnight of
January 22, 1966, as embodied in our resolution dated February 16, 1966.

We will now elaborate on the reasons expressed in said resolution.

The important provision to be considered is Article VII, Section 10, Subsection 4 of our Constitution, which provides:

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.
A perusal of the above-quoted provision would at once reveal that it is the clear intent of the framers of our Constitution
to make a recess appointment effective only (a) until disapproval by the Commission on Appointments, or (b) until the
next adjournment of Congress, and never a day longer regardless of the nature of the session adjourned. And this is
so considering the plain language of the aforesaid provision which is free from any ambiguity in the light of the well-
settled rule of statutory construction that "when the intention of the legislature is so apparent from the face of the
statute that there can be no question as to its meaning there is no room for construction" (Vol. 2, Sutherland, Statutory
Construction, p. 316). Hence, the above provision contemplates two modes of termination of an ad
interim appointment, or of one made during the recess of Congress, which are completely separate from, and
independent of, each other. And while during the special session called under proclamation No. 2 no Commission on
Appointments was organized by Congress, the second mode of termination, however, had its constitutional effect, as
when Congress adjourned sine die at about midnight of January 22. 1966. Such adjournment, in legal contemplation,
had the effect of terminating petitioner's appointment thereby rendering it legally ineffective.

Petitioner's theory that the first mode of termination consisting in the disapproval by the Commission on Appointments
should be inseparately related with the clause "until the next adjournment of Congress" in the sense that the
Commission has to be first organized in order that the last mode may operate is untenable considering that the latter
is not dependent upon, nor influenced in any manner by the operation of the former. As already stated, the two modes
of termination are completely separate from and independent of each other. If the framers of the Constitution had
intended to make the operation of the second clause dependent upon the prior constitution of the Commission on
Appointments they should have so stated in clear terms considering that the first clause implies a positive act of the
Commission, while the second an entirely separate and independent act of Congress. Indeed, the theory of petitioner,
if carried to its logical conclusion, may result into the anomaly that, should Congress be controlled by a party not
inclined to organize said Commission, or should there arise a group which for reasons of its own indulges in
obstructionism, the Commission on Appointments contemplated in the Constitution is never organized as a
consequence of the action of either, any appointment made during the recess of Congress would never run the test
of legislative scrutiny and would thereby then be always considered permanent even if it is extended ad interim, a
result which, to be sure, was never intended by the framers of our Constitution. It thus becomes imperative that we
avoid such absurd result.

It is true that the provision of the Constitution we are now considering in speaking of the mode of termination
epitomized in the phrase "until the next adjournment of the Congress" does not make any reference to any specific
session of the Congress, whether regular or special, but such silence is of no moment, for it is a well-known
maxim in statutory construction that when the law does not distinguish we should not distinguish. UBI LEX NON
DISTINGUIT NEC NOS DISTINGUERE DEBEMUS (Robles vs. Zambales Chromite Mining Company, et al., G. R.
No. L-12560, September 30, 1958). Consequently, it is safe to conclude that the framers of our Constitution in
employing merely the word adjournment as a mode of terminating an appointment made during the recess of
Congress had in mind either the regular or special session, and not simply the regular one as contended by petitioner.

Under our tripartite form of government predicated on the principle of separation of powers the power to appoint is
inherently an executive function while the power to confirm or reject appointments belongs to the legislative
department, the latter power having been conferred as a check on the former. This power to check may be exercised
through the members of both Houses in the Commission on Appointments. But although the Commission on
Appointments is provided for in the Constitution, its organization requires congressional action, and once organized,
by express provision of the Constitution, it "shall meet only while Congress is in session." Consequently, if for any
reason Congress adjourns a regular or special session without organizing the Commission on Appointments,
Congress should be deemed to have impliedly exercised said power to check by allowing the ad interim appointments
to lapse as provided for in the Constitution.

The next important inquiry is: Since Congress in its special session held under Proclamation No. 2 of the President,
series of 1966, did not deem it wise to organize the Commission on Appointments to act on the recess appointments
made by the former Executive, can it be said that Congress is deemed to have impliedly exercised its power to check
on such recess appointments when it adjourned its special session at about 12:00 o'clock midnight of January 22,
1966?

The answer must of necessity be in the affirmative inasmuch as that special session actually adjourned in legal
contemplation at about 12:00 midnight of January 22, 1966 considering that the Senate adjourned sine die at about
said hour. Although the House allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be resumed on
Monday, January 24, 1966, at 10:00 a.m., Congress cannot be considered to be in special session subsequently to
January 22 for the reason that the House without the Senate which had adjourned sine die, is not "Congress." Indeed,
when the Senate adjourned at 12:00 midnight on January 22, 1966 this adjournment should be considered as the
"next adjournment of the Congress" of the special session notwithstanding the alleged suspension of the session
earlier by the House for the reason that neither the House nor the Senate can hold session independently of the other
in the same manner as neither can transact any legislative business after the adjournment of the other. None other
than President Macapagal and Speaker Cornelio Villareal expressed such opinion when as members of the Lower
House in 1954 they expoused and defended the same on the floor as can be seen from the following transcript of the
congressional record:

Mr. MACAPAGAL . . . Since the Senate has, by its own responsibility, adjourned one and a half hours ago,
therefore, under the present facts, in our Constitution this House is automatically adjourned, and therefore it
is improper and illegal for us to continue the proceedings farther.

xxx xxx xxx

Mr. VILLAREAL Mr. Speaker, although it is true that I do not want to appeal from the ruling of the Chair,
nonetheless, I maintain that our actuations from the time we approved that resolution will be illegal acts, and
I do not want this Congress to commit illegal acts because it will affect the dignity of this Chamber. We are not
unaware of the facts. I invite the Presiding Officer and everybody here to go to the Senate now, and if they
accept my challenge, let us go so that I can prove to them that there is not one ghost of any Senator in that
Chamber. The Senate has actually adjourned, Mr. Speaker, and are we to have a fiction here that the Senators
are still holding a session? We approved that resolution of adjournment before twelve o'clock tonight knowing
that the Senate adjourned two or three hours ago. Are we crazy here to believe that the Senators are still
holding sessions? How can we in conscience justify our actuations here that we are still doing something for
the benefit of the people when in fact and in truth we are not because we cannot do so? . . .

Mr. Speaker, let us be frank; let us be honest to ourselves; let us not ridicule ourselves; let us adjourn now
because we having nothing to do and all that we will do will be illegal beginning now. . . .

Mr. Speaker. I honestly believe that legally we cannot do anything any further, and if I am the author of a bill
pending approval, I would not submit the bill for passage now because that will be the subject of litigation in
court as to whether such approval will be legal or not, and I would never risk my committee report to be
submitted after the approval of that resolution, knowing fully well that actually and physically that Upper
Chamber has already adjourned. (Congressional Record, House of Representatives, 3rd Congress, Republic
of the Philippines, First Regular and First Special Sessions, Vol. I, pp. 4091 and 4094). 1wph1.t

As a corollary, the theory that there was a continuous session without any interruption when the house allegedly
suspended its session at 10:55 p.m. on January 22, 1966 to be resumed on Monday, January 24, 1966 at 10:00 a.m.
cannot be accepted, because such theory runs counter to well-established parliamentary precedents and practice.
Thus, for one thing, between January 22, 1966 at 10:55 p.m. and January 24, 1966 at 10:35 a.m. when the House
opened its regular session, there intervened January 23, 1966, which was Sunday, and as such is expressly excluded
by the Constitution as a session day of Congress. For another, it is imperative that there be a "constructive recess"
between a special and regular session, as when a regular session succeeds immediately a special session or vice-
versa, and so a special session cannot be held immediately before a regular session without any interruption nor can
both be held simultaneously together. Hinds' Precedents has the following to say on the matter:

The commissions granted during the recess prior to the convening of Congress in extraordinary session
November 9, 1903, of course furnished lawful warrant for the assumption by the persons named therein of the
duties of the offices to which they were, respectively, commissioned. Their names were regularly sent to the
Senate thereafter. If confirmed, of course they would hold under appointment initiated by the nomination
without any regard to the recess commission. If not confirmed, their right to hold under the recess nomination
absolutely ended at 12 o'clock meridian on the 7th of December, 1903, for at that hour the extraordinary
session ended and the regular session of Congress began by operation of law. An extraordinary session and
a regular session can not coexist, and the beginning of the regular session at 12 o'clock was the end of the
extraordinary session; not a constructive end of it, but an actual end of it. At 12 o'clock December 7 the
President pro tempore of the Senate said:
 Senators, the hour provided by law for the meeting of the first regular session of the Fifty-eighth
Congress having arrived, I declare the extraordinary session adjourned without day.

Aside from the statement upon the record that the "hour had struck" which marked the ending of the one and
the beginning of the other, the declaration of the President pro tempore was without efficacy. It did not operate
to adjourn without day either the Congress or the Senate. Under the law the arrival of the hour did both.

The constitutional provision that the commission shall expire at the end of the next session is self-executing,
and when the session expires the right to hold under the commission expires with it. If there be no appreciable
point of time between the end of one session and the beginning of another, since of necessity one ends and
another begins, the tenure under the commission as absolutely terminates as if months of recess supervened.
(Hinds' Precedents of the House of Representatives of the United States, Vol. V, p. 854.)

Considering now petitioner's ad interim appointment and others extended under similar conditions in the light of the
doctrine we laid down in the Aytona case, we may say that they were even more irregular than those involved in said
case to the extend that they may be avoided even on this ground alone. Thus, while President Garcia only extended
350 ad interim appointments after he had lost the election, President Macapagal made 1,717 ad interim appointments
most of which were made only after the elections in November, 1965. As a consequence, the following anomalies
were noted: a former presidential assistant was appointed judge of three different salas, another was appointed to a
non-existing branch of the Court of First Instance of Pangasinan, while still another who had a pending disbarment
case received an ad interim appointment as judge of first instance. This is indeed a far cry from the following
admonition we made in the Aytona case:

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30,
1961. But it is common sense to believe that after the proclamation of the election of President Macapagal,
his was no more than a "caretaker" administration. He was duty bound to prepare for the orderly transfer of
authority to the incoming President, and he should not do acts which, he ought to know, would embarrass or
obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not
for him to use his powers as incumbent President to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan purposes. The filling up of vacancies in important
positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of
the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to
make the corresponding appointments. (Aytona vs. Castillo, et al., G.R. No. L-19313, January 20, 1962.)

It is hoped that now and hereafter such excess in the exercise of power should be obviated to avoid confusion,
uncertainty, embarrassment and chaos which may cause disruption in the normal function of government to the
prejudice of public interest. It is time that such excess be stopped in the interest of the public weal.

Wherefore, petition is denied. No costs.

Bengzon, C.J., Reyes, J.B.L., Barrera and Regala, JJ., concur.

Makalintal, J., dissents for the same reasons previously expressed by him in the resolution of Feb. 16, 1966.
Bengzon, J.P., and Sanchez, JJ., took no part.
BLAQUERA vs. ALCALA, G.R. No. 109406, 11 September 1998

PURISIMA, J.:

These are cases for certiorari and prohibition, challenging the constitutionality and validity of Administrative
Order Nos. 29 and 268 on various grounds.
The facts in G.R. Nos. 109406, 110642, 111494, and 112056 are undisputed, to wit:
Petitioners are officials and employees of several government departments and agencies who were paid
incentive benefits for the year 1992, pursuant to Executive Order No. 292[1] (EO 292), otherwise known as the
Administrative Code of 1987, and the Omnibus Rules Implementing Book V[2]of EO 292. On January 19, 1993,
then President Fidel V. Ramos (President Ramos) issued Administrative Order No. 29 (AO 29) authorizing the
grant of productivity incentive benefits for the year 1992 in the maximum amount of P1,000.00[3] and reiterating
the prohibition[4] under Section 7[5]of Administrative Order No. 268 (AO 268), enjoining the grant of productivity
incentive benefits without prior approval of the President. Section 4 of AO 29 directed [a]ll departments, offices
and agencies which authorized payment of CY 1992 Productivity Incentive Bonus in excess of the amount
authorized under Section 1 hereof [are hereby directed] to immediately cause the return/refund of the excess
within a period of six months to commence fifteen (15) days after the issuance of this Order. In compliance
therewith, the heads of the departments or agencies of the government concerned, who are the herein respondents,
caused the deduction from petitioners salaries or allowances of the amounts needed to cover the alleged
overpayments. To prevent the respondents from making further deductions from their salaries or allowances, the
petitioners have come before this Court to seek relief.
In G.R. No. 119597, the facts are different but the petition poses a common issue with the other consolidated
cases. The petitioner, Association of Dedicated Employees of the Philippine Tourism Authority (ADEPT), is
an association of employees of the Philippine Tourism Authority (PTA) who were granted productivity incentive
bonus for calendar year 1992 pursuant to Republic Act No. 6971 (RA 6971), otherwise known as the Productivity
Incentives Act of 1990. Subject bonus was, however, disallowed by the Corporate Auditor on the ground that it
was prohibited under Administrative Order No. 29 dated January 19, 1993.[6] The disallowance of the bonus in
question was finally brought on appeal to the Commission on Audit (COA) which denied the appeal in its
Decision[7]of March 6, 1995, ratiocinating, thus:

xxx Firstly, the provisions of RA #6971 insofar as the coverage is concerned, refer to
business enterprises including government owned and/or controlled corporations
performing proprietary functions.

Section 1a of the Supplemental Rules Implementing RA #6971 classified such coverage

as:

All business enterprises, with or without existing duly certified labor organizations,
including government owned and/or controlled corporations performing proprietary
functions which are established solely for business or profit and accordingly excluding
those created, maintained or acquired in pursuance of a policy of the State enunciated
in the Constitution, or by law and those whose officers and employees are covered by
the Civil Service. (underscoring supplied)

The PTrA is a GOCC created in pursuance of a policy of the State. Section 9 of

Presidential Decree No. 189 states that To implement the policies and program of the
Department (Dept. of Tourism), there is hereby created a Philippine Tourism Authority,
xxx. Likewise, Section 21 of the same decree provides that All officials and employees of
the Authority, xxx, shall be subject to Civil Service Law, rules and regulations, and the
coverage of the Wage and Position Classification Office.

Furthermore, although Supplemental Rules and Regulations implementing R.A. #6971

was issued only on December 27, 1991, the law itself is clear that it pertains to private
business enterprises whose employees are covered by the Labor Code of the Philippines,
as mentioned in the following provisions:

Section 5. Labor Management Committee. xxx that at the request of any party to the
negotiation, the National Wages and Productivity Commission of the Department of
Labor and Employment shall provide the necessary studies, xxx.

Section 8. Notification. - A business enterprise which adopts a productivity incentive

program shall submit copies of the same to the National Wages and Productivity
Commission and to the Bureau of Internal Revenue for their information and record.

Section 9. Disputes and Grievances. - Whenever disputes, grievances, or other matters

arise from the interpretation or implementation of the productivity incentive program,
xxx may seek the assistance of the National Conciliation and Mediation Board of the
Department of Labor and Employment for such purpose. xxx

Therefore, considering the foregoing, the PTrA is within the exclusion provision of the
Implementing Rules of RA #6971 and so, it (PTrA) does not fall within its coverage as
being entitled to the productivity incentive bonus under RA #6971.
Secondly, Administrative Order No. 29 which is the basis for the grant of the productivity
incentive bonus/benefits for CY 1992 also expressly provides prohibiting payments of
similar benefits in future years unless duly authorized by the President.

Thirdly, the disallowance of the Auditor, PTrA has already been resolved when this
Commission circularized thru COA Memorandum #92-758 dated April 3, 1992 the
Supplemental to Rules Implementing RA 6971 otherwise known as the Productivity
Incentives Act of 1990. xxx

Lastly, considering the title of RA #6971, i.e. An Act to encourage productivity and
maintain industrial peace by providing incentives to both labor and capital, and its
implementing rules and regulations prepared by the Department of Labor and
Employment and the Department of Finance, this Office concludes that said
law/regulation pertains to agencies in the private sector whose employees are covered
by the Labor Code.

With the denial of its appeal, petitioner found its way here via the petition in G.R. No. 119597, to seek relief from
the aforesaid decision of COA.
We will first resolve the issue on the applicability of RA 6971 to petitioner ADEPT in G.R. No. 119597
before passing upon the constitutionality or validity of Administrative Orders 29 and 268.
Section 3 of RA 6971, reads:

SECTION 3. Coverage. This Act shall apply to all business enterprises with or without
existing and duly recognized or certified labor organizations, including government-
owned and controlled corporations performing proprietary functions. It shall cover all
employees and workers including casual, regular, supervisory and managerial
employees. (underscoring ours)

Pursuant to Section 10[8] of RA 6971, the Secretary of Labor and Secretary of Finance issued Supplemental Rules
to Implement the said law, as follows:

Section 1. - Paragraph (a) Section 1, Rule II of the Rules Implementing RA 6971, shall be
amended to read as follows:

Coverage. These Rules shall apply to:

(a) All business enterprises with or without existing duly certified labor organizations,
including government-owned and controlled corporations performing proprietary
functions which are established solely for business or profit or gain and accordingly
excluding those created, maintained or acquired in pursuance of a policy of the state,
enunciated in the Constitution or by law, and those whose officers and employees are
covered by the Civil Service. (underscoring ours)

xxx
Petitioner contends that the PTA is a government-owned and controlled corporation performing proprietary
function, and therefore the Secretary of Labor and Employment and Secretary of Finance exceeded their authority
in issuing the aforestated Supplemental Rules Implementing RA 6971.
Government-owned and controlled corporations may perform governmental or proprietary functions or both,
depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits
or earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement
of public good and welfare, affecting the public in general, the function is governmental. [9] Powers classified as
proprietary are those intended for private advantage and benefit.[10]
The PTA was established by Presidential Decree No. 189, as amended by Presidential Decree No. 564 (PD
564).
Its general purposes [11] are:
1. To implement the policies and programs of the Department of Tourism (Department);
2. To develop tourist zones;
3. To assist private enterprises in undertaking tourism projects;
4. To operate and maintain tourist facilities;
5. To assure land availability for private investors in hotels and other tourist facilities;
6. To coordinate all tourism project plans and operations.
Its specific functions and powers[12] are:
1. Planning and development of tourism projects
a. To assist the Department make a comprehensive survey of the physical and natural tourism resources of the
Philippines; to establish the order of priority for development of said areas; to recommend to the President the
proclamation of a tourist zone; and to define and fix the boundaries of the zone;
b. To formulate a development plan for each zone;
c. To submit to the President through the National Economic and Development Authority for review and
approval all development plans before the same are enforced or implemented;
d. To submit to the President an Annual Progress Report;
e. To assist the Department to determine the additional capacity requirements for various tourist facilities and
services; to prepare a ten-year Tourism Priorities Plan; to update annually the ten year Tourism Priorities Plan.
f. To gather, collate and analyze statistical data and other pertinent information for the effective
implementation of PD 564.
2. Acquisition and disposition of lands and other assets for tourist zone purposes
 a. To acquire possession and ownership of all lands transferred to it from other government corporations and
institutions and any land having tourism potential and earmarked in the Tourism Priorities Plans for intensive
development into a tourist zone or as a part thereof, subject to the approval of the President.
b. To acquire by purchase, by negotiation or by condemnation proceedings any private land within and without
the tourist zones for any of the following reasons: (a) consolidation of lands for tourist zone development
purposes, (b) prevention of land speculation in areas declared as tourist zones, (c) acquisition of right of way
to the zones, (d) protection of water shed areas and natural assets with tourism value, and (e) for any other
purpose expressly authorized under PD 564.
c. For the purpose of providing land acquisition assistance to registered tourism enterprises, to sell, subdivide,
resell, lease, sublease, rent out, or otherwise, to said registered tourism enterprises under sufficiently soft terms
for use specifically in the development of hotels, recreational facilities, and other tourist services.
d. To develop and/or subdivide any land in its name or undertake condominium projects thereon, and sell
subdivision lots or condominium units to private persons for investment purposes.
e. To take over or transfer to a registered tourism enterprise in accordance with law any lease on foreshore
areas within a tourist zone or adjacent thereto, in cases said areas are not being utilized in accordance with the
PTAs approved zone development plan and wherein the lessee concerned does not agree to conform
accordingly.
f. To arrange for the reclamation of any land adjacent to or adjoining a tourist zone in coordination with
appropriate government agencies.
3. Infrastructure development for tourist zone purposes
a. To contract, supervise and pay for infrastructure works and civil works within a tourist zone owned and
operated by the PTA.
b. To coordinate with appropriate government agencies the development of infrastructure requirements
supporting a tourist zone.
c. To take water from any public stream, river, creek, lake, spring, or waterfall and to alter, straighten, obstruct
or increase the flow of water in streams.
4. Zone administration and control
a. To formulate and implement zoning regulations.
b. To determine and regulate the enterprises to be established within a tourist zone.
c. To ensure, through the proper authorities concerned, the ecological preservation, maintenance and/or
rehabilitation of the common and the public areas within a tourist zone and the environment thereof.
d. To identify and recommend to the President the preservation and/or restoration of national monuments or
preserves; to arrange for the preservation and/or restoration of the same with appropriate government agencies
or with the private sector or with the owners themselves of said tourist attractions; and to identify and
recommend to the appropriate authorities concerned the declaration of tourist areas and attractions as national
monuments and preserves.
5. Project and investment promotions
a. To identify, develop, invest in, own, manage and operate such projects as it may deem to be vital for
recreation and rest but not sufficiently attractive economically for private investment.
b. To construct hotel buildings and other tourist facilities within a tourist zone and in turn lease such facilities to
registered tourism enterprises for operation, management and maintenance.
c. To organize, finance, invest in, manage and operate wholly-owned subsidiary corporations.
6. Direct assistance to registered enterprises
a. To administer the tax and other incentives granted to registered enterprises.
 b. To evaluate, approve and register or reject any and all tourism projects or enterprises established within the
tourist zones.
c. To grant medium and long-term loans and/or re-lend any funds borrowed for the purpose to duly qualified
registered tourism enterprises.
d. To guarantee local and foreign borrowings of registered enterprises.
e. To provide equity investments in the form of cash and/or land.
f. To extend technical, management and financial assistance to tourism projects.
g. To identify, contact and assist in negotiations of suitable partners for both local and foreign investors
interested in investment or participation in the tourism industry.
h. To assist registered enterprises and prospective investors to have their papers processed with dispatch by
government offices.
7. Other powers and functions
a. To engage or retain the services of financial, management, legal, technical, and/or project consultants from
the private or government sector.
b. To have the power to succeed by its corporate name.
c. To adopt, alter, and use a corporate seal.
d. To sue and be sued under its corporate name.
e. To enter into any contracts of any kind and description.
f. To own or possess personal and/or real property.
g. To make, adopt and enforce rules and regulations to execute its powers, duties and functions.
h. To purchase, hold, and alienate shares of stock or bonds of any corporation.
I. To collect fees or charges as may be imposed under PD 564.
j. To contract indebtedness and issue bonds.
k. To fix and collect rentals for the lease, use or occupancy of lands, buildings, or other property owned or
administered by PTA.
l. To do any and all acts and things necessary to carry out the purposes for which the PTA is created.
Categorized in light of the foregoing provisions of law in point, PTAs governmental functions include the
first, third, fourth, and sixth of the aforesaid general purposes. The second[13] and fifth general purposes fall under
its proprietary functions.
With respect to PTAs specific functions and powers, the first and fourth are governmental in nature
while the fifth specific functions and powers are proprietary in character. The second, third, sixth, and seventh
specific functions and powers can be considered partly-governmental and partly-proprietary, considering that
2(a), 2(b), 2(c), 2(d), 2(e), 3(a), 6(c), 6(d), 6(e), 7(h), 7(j), and 7(k) are proprietary functions while 2(f), 3(b), 3(c),
6(a), 6(b), 6(f), 6(g), 6(h), 7(a), 7(b), 7(c), 7(d), 7(f), 7(g), and 7(l) are governmental functions. The specific
functions and powers treated in 7(e) and 7(i) may be classified either as proprietary or governmental, depending
on the circumstances under which they are exercised or performed.
The aforecited powers and functions of PTA are predominantly governmental, principally geared towards
the development and promotion of tourism in the scenic Philippine archipelago. But it is irrefutable that PTA also
performs proprietary functions, as envisaged by its charter.
Reliance on the above analysis of the functions and powers of PTA does not suffice for the determination of
whether or not it is within the coverage of RA 6971. For us to resolve the issues raised here solely on the basis of
the classification of PTAs powers and functions may lead to the rendition of judgment repugnant to the legislative
intent and to established doctrines, as well, such as on the prohibition against government workers to
strike.[14] Under RA 6971, the workers have the right to strike.
To ascertain whether PTA is within the ambit of RA 6971, there is need to find out the legislative intent, and
to refer to other provisions of RA 6971 and other pertinent laws, that may aid the Court in ruling on the right of
officials and employees of PTA to receive bonuses under RA 6971.
Petitioner cites an entry in the journal of the House of Representatives to buttress its submission that PTA is
within the coverage of RA 6971, to wit:

Chairman Veloso: The intent of including government-owned and controlled

corporations within the coverage of the Act is the recognition of the principle that when
government goes into business, it (divests) itself of its immunity from suit and goes
down to the level of ordinary private enterprises and subjects itself to the ordinary laws
of the land just like ordinary private enterprises. Now, when people work therefore in
government-owned or controlled corporations, it is as if they are also, just like in the
private sector, entitled to all the benefits of all laws that apply to workers in the private
sector. In my view, even including the right to organize, bargain.... VELOSO (Bicameral
Conference Committee on Labor and Employment, pp. 15-16)

After a careful study, the Court is of the view, and so holds, that contrary to petitioners interpretation, the
government-owned and controlled corporations Mr. Chairman Veloso had in mind were government-owned and
controlled corporations incorporated under the general corporation law. This is so because only workers in private
corporations and government-owned and controlled corporations, incorporated under the general corporation law,
have the right to bargain (collectively). Those in government corporations with special charter, which are subject
to Civil Service Laws, have no right to bargain (collectively), except where the terms and conditions of
employment are not fixed by law.[15] Their rights and duties are not comparable with those in the private sector.

Since the terms and conditions of government employment are fixed by law,
government workers cannot use the same weapons employed by workers in the
private sector to secure concessions from their employers. The principle behind labor
unionism in private industry is that industrial peace cannot be secured through
compulsion by law.Relations between private employers and their employees rest on
an essentially voluntary basis. Subject to the minimum requirements of wage laws and
other labor and welfare legislation, the terms and conditions of employment in the
unionized private sector are settled through the process of collective bargaining. In
government employment, however, it is the legislature and, where properly given
delegated power, the administrative heads of government which fix the terms and
conditions of employment. And this is effected through statutes or administrative
circulars, rules, and regulations, not through collective bargaining agreements. (Alliance
of Government Workers v. Minister of Labor and Employment, 124 SCRA 1) (italics
ours)

Government corporations may be created by special charters or by incorporation under the general
corporation law. Those created by special charters are governed by the Civil Service Law while those incorporated
under the general corporation law are governed by the Labor Code.[16]
The legislative intent to place only government-owned and controlled corporations performing proprietary
functions under the coverage of RA 6971 is gleanable from the other provisions of the law. For instance, section
2[17] of said law envisions industrial peace and harmony and to provide corresponding incentives to both labor and
capital; section 4[18] refers to representatives of labor and management; section 5[19] mentions of collective
bargaining agent(s) of the bargaining unit(s); section 6[20] relates to existing collective bargaining agreements, and
labor and management; section 7[21] speaks of strike or lockout; and section 9[22] purports to seek the assistance of
the National Conciliation and Mediation Board of the Department of Labor and Employment and include the
name(s) of the voluntary arbitrators or panel of voluntary arbitrator. All the aforecited provisions of law apply
only to private corporations and government-owned and controlled corporations organized under the general
corporation law. Only they have collective bargaining agents, collective bargaining units, collective bargaining
agreements, and the right to strike or lockout.
To repeat, employees of government corporations created by special charters have neither the right to strike
nor the right to bargain collectively, as defined in the Labor Code. The case of Social Security System Employees
Association indicates the following remedy of government workers not allowed to strike or bargain collectively,
to wit:

Government employees may, therefore, through their unions or associations,

either petition the Congress for the betterment of the terms and conditions of
employment which are within the ambit of legislation or negotiate with the
appropriate government agencies for the improvement of those which are not
fixed by law. If there be any unresolved grievances, the dispute may be referred
to the Public Sector Labor-Management Council for appropriate action. But
employees in the civil service may not resort to strikes, walkouts and other
temporary work stoppages, like workers in the private sector, to pressure the
Government to accede to their demands. (supra, footnote 14, p. 698; italics ours)
It is a rule in statutory construction that every part of the statute must be interpreted with reference to the
context, i.e., that every part of the statute must be considered together with the other parts, and kept subservient
to the general intent of the whole enactment.[23] The provisions of RA 6971, taken together, reveal the legislative
intent to include only government-owned and controlled corporations performing proprietary functions within its
coverage.
Every statute must be construed and harmonized with other statutes as to form a uniform system of
jurisprudence.[24] We note Section 1, Rule X of the Omnibus Rules Implementing Book V ofEO 292, which reads:
 SECTION 1. - Each department or agency of government, whether national or
local, including bureaus and agencies, state colleges and universities,
and government owned and controlled corporations with original charters,
shall establish its own Department or Agency Employee Suggestions and
Incentives Award System in accordance with these Rules and shall submit the
same to the Commission for approval. (underscoring ours)
It is thus evident that PTA, being a government-owned and controlled corporation with original charter subject to
Civil Service Law, Rules and Regulations,[25] is already within the scope of an incentives award system under
Section 1, Rule X of the Omnibus Rules Implementing EO 292 issued by the Civil Service
Commission (Commission). Since government-owned and controlled corporations with original charters do have
an incentive award system, Congress enacted a law that would address the same concern of officials and
employees of government-owned and controlled corporations incorporated under the general corporation law.
All things studiedly considered in proper perspective, the Court finds no reversible error in the finding by
respondent Commission that PTA is not within the purview of RA 6971. As regards the promulgation of
implementing rules and regulations, it bears stressing that the power of administrative officials to
promulgate rules in the implementation of the statute is necessarily limited towhat is provided for in the
legislative enactment.[26] In the case under scrutiny, the Supplementary Rules Implementing RA 6971 issued by
the Secretary of Labor and Employment and the Secretary of Finance accord with the intendment and provisions
of RA 6971. Consequently, not being covered by RA 6971, AO 29 applies to the petitioner.
We now tackle the common issue posited by the consolidated petitions on the constitutionality of AO 29 and
AO 268.
Petitioners contend and argue, that:
I. AO 29 AND AO 268 ARE VIOLATIVE OF THE PROVISIONS OF EO 292 AND, HENCE, NULL AND
VOID.
II. AO 29 AND AO 268 UNLAWFULLY USURP THE CONSTITUTIONAL AUTHORITY GRANTED
SOLELY TO THE CIVIL SERVICE COMMISSION.
III. THE FORCED REFUND OF INCENTIVE PAY IS AN UNCONSTITUTIONAL IMPAIRMENT OF A
CONTRACTUAL OBLIGATION.
IV. ASSUMING, FOR THE SAKE OF ARGUMENT ONLY, THAT THE GRANT OF PRODUCTIVITY
INCENTIVE BENEFITS WAS INVALID, THE SAME SHOULD BE THE PERSONAL LIABILITY OF
OFFICIALS DIRECTLY RESPONSIBLE THEREFOR IN ACCORDANCE WITH SECTION 9 OF AO 268.
Issued by the then President Corazon Aquino (President Aquino) on July 25, 1987 in the exercise of her
legislative powers under the 1987 Constitution,[27] EO 292, or the Administrative Code of 1987, provided for the
following incentive award system:

Sec. 31. Career and Personnel Development Plans. - Each department or agency
shall prepare a career and personnel development plan which shall be integrated
into a national plan by the Commission. Such career and personnel development
plans which shall include provisions on merit promotions, performance evaluation,
in-service training, including overseas and local scholarships and training grants,
 job rotation, suggestions and incentive award systems, and such other provisions
for employees health, welfare, counseling, recreation and similar services.

Sec. 35. Employee Suggestions and Incentive Award System. - There shall be
established a government-wide employee suggestions and incentive awards
system which shall be administered under such rules, regulations, and standards
as maybe promulgated by the Commission.

In accordance with rules, regulations, and standards promulgated by the

Commission, the President or the head of each department or agency is
authorized to incur whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the government who by
their suggestions, inventions, superior accomplishment, and other personal
efforts contribute to the efficiency, economy, or other improvement of
government operations, or who perform such other extraordinary acts or services
in the public interest in connection with, or in relation to, their official
employment.

Sec. 36. Personnel Relations. - (1) It shall be the concern of the Commission to
provide leadership and assistance in developing employee relations programs in
the department or agencies.

(2) Every Secretary or head of agency shall take all proper steps toward the
creation of an atmosphere conducive to good supervisor-employee relations and
the improvement of employee morale.
Pursuant to the provision of Section 12(2),[28] Chapter 3, Book V of EO 292, the Commission adopted and
prescribed the Omnibus Rules Implementing Book V of EO 292 which, among others, provide:

Sec. 1. - Each department or agency of government, whether national or local,

including bureaus and agencies, state colleges and universities, and government
owned and controlled corporations with original charters, shall establish its own
Department or Agency Employee Suggestions and Incentives Award System in
accordance with these Rules and shall submit the same to the Commission for
approval.
 Sec. 2. - The System is designed to encourage creativity, innovativeness,
efficiency, integrity and productivity in the public service by recognizing and
rewarding officials and employees, individually or in groups, for their suggestions,
inventions, superior accomplishments, and other personal efforts which
contribute to the efficiency, economy, or other improvement in government
operations, or for other extraordinary acts of services in the public interest.
xxx

Sec. 7. - The incentive awards shall consist of, though not limited to, the following:
xxx

(c) Productivity Incentive which shall be given to an employee or group of

employees who has exceeded their targets or has incurred incremental
improvement over existing targets.
On February 21, 1992, President Aquino issued AO 268 which granted each official and employee of the
government the productivity incentive benefits in a maximum amount equivalent to thirty percent (30%) of his
one (1) month basic salary but in no case shall such amount be less than two thousand pesos (P2,000.00),[29] for
those who have rendered at least one year of service as of December 31, 1991.[30] Said AO carried the prohibition,
provided in Section 7 thereof, which reads:

SECTION 7. The productivity incentive benefits herein authorized shall be granted

only for Calendar Year 1991. Accordingly, all heads of agencies, including the
governing boards of government-owned or -controlled corporations and
financial institutions, are hereby strictly prohibited from authorizing/granting
productivity incentive benefits or other allowances of similar nature for Calendar
Year 1992 and future years pending the result of a comprehensive study being
undertaken by the Office of the President in coordination with the Civil Service
Commission and the Department of Budget and Management on the matter.

The formulation of the necessary implementing guidelines for Executive Order

No. 486 dated 8 November 1991 establishing a performance-based incentive
system for government-owned or -controlled corporations shall likewise be
included in the comprehensive study referred to in the preceding paragraph.
On January 19, 1993, President Ramos issued AO 29 which granted productivity incentive benefits to
government employees in the maximum amount of P1,000.00[31] for the calendar year 1992 but reiterated the
proscription under Section 7 of AO 268, thus:
 SECTION 2. The prohibition prescribed under Section 7 of Administrative Order
No. 268 is hereby reiterated. Accordingly, all heads of government
offices/agencies, including government-owned and/or controlled corporations,
as well as their respective governing boards are hereby enjoined and prohibited
from authorizing/granting Productivity Incentive Benefits or any and all similar
forms of allowances/benefits without prior approval and authorization via
Administrative Order by the Office of the President. Henceforth, anyone found
violating any of the mandates in this Order, including all officials/employees and
the COA Auditor-in-Charge of such government office/agency found to have
taken part thereof, shall be accordingly and severely dealt with in accordance
with the applicable provisions of existing penal laws.

Consequently, all administrative authorizations to grant any form of

allowances/benefits and all forms of additional compensation usually paid
outside of the prescribed basic salary under R.A. No. 6758, the Salary
Standardization Law, that are inconsistent with the legislated policy on the matter
or are not covered by any legislative action are hereby revoked.

The implementation of Executive Order No. 486 dated November 8, 1991, as

amended by Executive Order No. 518 dated May 29, 1992, is hereby deferred
until a more comprehensive and equitable scheme for the grant of the benefits
that can be applied government-wide is formulated by the Department of Budget
and Management.
Petitioners theorize that AO 29 and AO 268 violate EO 292 and since the latter is a law, it prevails over
executive issuances. Petitioners likewise assert that AO 29 and AO 268 encroach upon the constitutional authority
of the Civil Service Commission to adopt measures to strengthen the merit and rewards system and to promulgate
rules, regulations and standards governing the incentive awards system of the civil service.
The Court is not impressed with petitioners submission. AO 29 and AO 268 were issued in the valid exercise
of presidential control over the executive departments.
In establishing a Civil Service Commission, the 1987 Constitution delineated its function, as follows:

The Civil Service Commission, as the central personnel agency of the Government,
shall establish a career service and adopt measures to promote morale, efficiency,
integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall
 strengthen the merit and rewards system, integrate all human resources
development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall submit to the
President and the Congress an annual report on its personnel programs. (Section
3, Article IX, B, 1987 Constitution)
The Commission handles personnel matters of the government. As the central personnel agency of the
Government, it is tasked to formulate and establish a system of incentives and rewards for officials and employees
in the public sector, alike.
The functions of the Commission have been decentralized to the different departments, offices, and agencies
of the government --

SEC. 1. Declaration of Policy. -- The State shall insure and promote the
Constitutional mandate that appointments in the Civil Service shall be made only
according to merit and fitness; that the Civil Service Commission, as the central
personnel agency of the Government shall establish a career service, adopt
measures to promote morale, efficiency, integrity, responsiveness, and courtesy
in the civil service, strengthen the merit and rewards system, integrate all human
resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability; that public office is a
public trust and public officers and employees must at all times be accountable
to the people; and that personnel functions shall be decentralized, delegating the
corresponding authority to the departments, offices and agencies where such
functions can be effectively performed. (Section 1, Chapter I, Subtitle A, Title I,
EO 292) (underscoring ours)
Specifically, implementation of the Employee Suggestions and Incentive Award System has been decentralized
to the President or to the head of each department or agency --

Sec. 35. Employee Suggestions and Incentive Award System. - There shall be
established a government-wide employee suggestions and incentive awards
system which shall be administered under such rules, regulations, and standards
as maybe promulgated by the Commission.

In accordance with rules, regulations, and standards promulgated by the

Commission, the President or the head of each department or agency is
 authorized to incur whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the government who by
their suggestions, inventions, superior accomplishment, and other personal
efforts contribute to the efficiency, economy, or other improvement of
government operations, or who perform such other extraordinary acts or services
in the public interest in connection with, or in relation to, their official
employment. (EO 292) (underscoring ours)
The President is the head of the government. Governmental power and authority are exercised and
implemented through him. His power includes the control over executive departments --

The president shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed. (Section 17, Article VII, 1987
Constitution)

Control means the power of an officer to alter or modify 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.[32] It has been held
that [t]he President can, by virtue of his power of control, review, modify, alter or nullify any action, or decision,
of his subordinate in the executive departments, bureaus, or offices under him. He can exercise this power motu
proprio without need of any appeal from any party.[33]

When the President issued AO 29 limiting the amount of incentive benefits, enjoining heads of government
agencies from granting incentive benefits without prior approval from him, and directing the refund of the excess
over the prescribed amount, the President was just exercising his power of control over executive
departments. This is decisively clear from the WHEREAS CLAUSES of AO 268 and AO 29, to wit:

ADMINISTRATIVE ORDER NO. 268

xxx

WHEREAS, the productivity incentive benefits granted by the different agencies are of
varying amounts, causing dissension/demoralization on the part of those who had
received less and those who have not yet received any such benefit, thereby defeating
the purpose for which the same should be granted; and

WHEREAS, there exists the need to regulate the grant of the productivity incentive
benefits or other similar allowances in conformity with the policy on standardization of
compensation pursuant to Republic Act No. 6758;

x x x.
 ADMINISTRATIVE ORDER NO. 29

xxx

WHEREAS, the faithful implementation of statutes, including the Administrative

Code of 1987 and all laws governing all forms of additional compensation and
personnel benefits is a Constitutional prerogative vested in the President of the
Philippines under Section 17, Article VII of the 1987 Constitution;

WHEREAS, the Constitutional prerogative includes the determination of the rates,

the timing and schedule of payment, and final authority to commit limited resources
of government for the payment of personnel incentives, cash awards, productivity
bonus, and other forms of additional compensation and fringe benefits;

WHEREAS, some government agencies have overlooked said Constitutional

prerogative and have unilaterally granted to their respective officials and employees
incentive awards;

WHEREAS, the Office of the President issued Administrative Order No. 268, dated
February 21, 1992, strictly prohibiting the grant of Productivity Incentive Bonus or other
allowances of similar nature for Calendar Year 1992 and future years pending
the issuance of the requisite authorization by the President;

WHEREAS, notwithstanding said prohibition some government offices/agencies and

government-owned and/or controlled corporations and financial institutions have
granted productivity incentive benefits in varying nomenclature and amounts without
the proper authorization/coordination with the Office of the President;

WHEREAS, the unilateral and uncoordinated grant of productivity incentive benefits gave
rise to discontentment, dissatisfaction and demoralization among government personnel
who have received less or have not received at all such benefits;

x x x.
The President issued subject Administrative Orders to regulate the grant of productivity incentive benefits and to
prevent discontentment, dissatisfaction and demoralization among government personnel by committing limited
resources of government for the equal payment of incentives and awards. The President was only exercising his
power of control by modifying the acts of the respondents who granted incentive benefits to their employees
without appropriate clearance from the Office of the President, thereby resulting in the uneven distribution of
government resources.In the view of the President, respondents did a mistake which had to be corrected. In so
acting, the President exercised a constitutionally-protected prerogative --

The Presidents duty to execute the law is of constitutional origin. So, too, is his control
of all executive departments. Thus it is, that department heads are men of his
confidence. His is the power to appoint them; his, too, is the privilege to dismiss them
at pleasure. Naturally, he controls and directs their acts. Implicit then is his authority to
go over, confirm, modify or reverse the action taken by his department secretaries. In
this context, it may not be said that the President cannot rule on the correctness of a
decision of a department secretary. (Lacson-Magallanes Co., Inc. v. Pao, 21 SCRA 898)

Neither can it be said that the President encroached upon the authority of the Commission on Civil Service
to grant benefits to government personnel. AO 29 and AO 268 did not revoke the privilege of employees to
receive incentive benefits. The same merely regulated the grant and amount thereof.
Sound management and effective utilization of financial resources of government are basically executive
functions,[34] not the Commissions. Implicit is this recognition in EO 292, which states:

Sec. 35. Employee Suggestions and Incentive Award System. - There shall be established
a government-wide employee suggestions and incentive awards system which shall be
administered under such rules, regulations, and standards as maybe promulgated by the
Commission.

In accordance with rules, regulations, and standards promulgated by the

Commission, the President or the head of each department or agency is authorized to
incur whatever necessary expenses involved in the honorary recognition of subordinate
officers and employees of the government who by their suggestions, inventions, superior
accomplishment, and other personal efforts contribute to the efficiency, economy, or
other improvement of government operations, or who perform such other extraordinary
acts or services in the public interest in connection with, or in relation to, their official
employment. (Chapter 5, Subtitle A, Book V) (underscoring ours)

Conformably, it is the President or the head of each department or agency who is authorized to incur the
necessary expenses involved in the honorary recognition of subordinate officers and employees of the
government. It is not the duty of the Commission to fix the amount of the incentives. Such function belongs to
the President or his duly empowered alter ego.
Anent petitioners contention that the forcible refund of incentive benefits is an unconstitutional impairment
of a contractual obligation, suffice it to state that [n]ot all contracts entered into by the government will operate
as a waiver of its non-suability; distinction must be made between its sovereign and proprietary acts (United States
of America v. Ruiz, 136 SCRA 487).[35] The acts involved in this case are governmental. Besides, the Court is in
agreement with the Solicitor General that the incentive pay or benefit is in the nature of a bonus which is not a
demandable or enforceable obligation.
It is understood that the Judiciary, Civil Service Commission, Commission on Audit, Commission on
Elections, and Office of the Ombudsman, which enjoy fiscal autonomy, are not covered by the amount fixed by
the President. As explained in Bengzon vs. Drilon (208 SCRA 133):

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the
Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and dispatch that their needs require. It
recognizes the power and authority to levy, assess and collect fees, fix rates of
compensation not exceeding the highest rates authorized by law for compensation and
pay plans of the government and allocate and disburse such sums as may be provided
by law or prescribed by them in the course of the discharge of their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs
100 typewriters but DBM rules we need only 10 typewriters and sends its
recommendations to Congress without even informing us, the autonomy given by the
Constitution becomes an empty and illusory platitude.

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 of 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. In the interest of
comity and cooperation, the Supreme Court, Constitutional Commissions, and the
Ombudsman have so far limited their objections to constant reminders. We now agree
with the petitioners that this grant of autonomy should cease to be a meaningless
provision.

Untenable is petitioners contention that the herein respondents be held personally liable for the refund in
question. Absent a showing of bad faith or malice, public officers are not personally liable for damages resulting
from the performance of official duties.[36]
Every public official is entitled to the presumption of good faith in the discharge of official duties.[37] Absent
any showing of bad faith or malice, there is likewise a presumption of regularity in the performance of official
duties.[38]
In upholding the constitutionality of AO 268 and AO 29, the Court reiterates the well-entrenched doctrine
that in interpreting statutes, that which will avoid a finding of unconstitutionality is to be preferred.[39]
Considering, however, that all the parties here acted in good faith, we cannot countenance the refund of
subject incentive benefits for the year 1992, which amounts the petitioners have already received. Indeed,
no indicia of bad faith can be detected under the attendant facts and circumstances. The officials and chiefs of
offices concerned disbursed such incentive benefits in the honest belief that the amounts given were due to the
recipients and the latter accepted the same with gratitude, confident that they richly deserve such benefits.
WHEREFORE, the Petitions in G.R. Nos. 109406, 110642, 111494, and 112056 are hereby DISMISSED,
and as above ratiocinated, further deductions from the salaries and allowances ofpetitioners are hereby
ENJOINED.
In G.R. No. 119597, the assailed Decision of respondent Commission on Audit is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Davide Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Martinez and Quisumbing, JJ., concur.
Regalado, J., on official leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-17169 November 30, 1963

ISIDRO C. ANG-ANGCO, petitioner,

vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.

Juan T. David for petitioner.

Office of the Solicitor General for respondents.

BAUTISTA ANGELO, J.:

On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc. wrote a letter to the Secretary of Commerce
and Industry requesting for special permit to withdraw certain commodities from the customs house which were
imported without any dollar allocation or remittance of foreign exchange. Said commodities consisted of 1,188 units
of pepsi-cola concentrates which were not covered by any Central Bank release certificate. On the same date, the
company addressed an identical request to the Secretary of Finance who was also the Chairman of the Monetary
Board of the Central Bank. Senator Pedro Sabido, in behalf of the company, likewise wrote said official urging that
authority be given to withdraw the abovementioned concentrates. Not content with this step, he also wrote to Dr.
Andres Castillo, Acting Governor of the Central Bank, urging, the same matter. Then Secretary Hernandez wrote
another letter to Dr. Castillo stating, "Senator Sabido is taking this to you personally. Unless we have legal objection,
I would like to authorize the withdrawal of the concentrates upon payment of all charges in pesos. Please expedite
action."

Almost at the same time, the Import-Export Committee of the Central Bank, thru Mr. Gregorio Licaros, submitted to
the Monetary Board a memorandum on the joint petition of the company and Sabido Law Office for authority to
withdraw the concentrates from the customs house stating therein that it sees no objection to the proposal. The
Monetary Board, however, failed to take up the matter in its meeting of October 12, 1956 for the reason that the
transaction did not involve any dollar allocation or foreign exchange, and of this decision Mr. Licaros was informed.

Having failed to secure the necessary authority from the Central Bank, on October 13, 1956, the counsel of the Pepsi-
Cola Far East Trade Development Co., Inc., approached Collector of Customs Isidro Ang-Angco in an attempt to
secure from him the immediate release of the concentrates, but this official seeing perhaps that the importation did
not carry any release certificate from the Central Bank advised the counsel to try to secure the necessary release
certificate from the No-Dollar Import Office that had jurisdiction over the case. In the morning of the same day, Mr.
Aquiles J. Lopez, of said Office, wrote a letter addressed to the Collector of Customs stating, among other things, that
his office had no objection to the release of the 1,188 units of concentrates but that it could not take action on the
request as "the same is not within the jurisdiction of the No-Dollar Import Office within the contemplation of R.A. No.
1410." The counsel already referred to above showed the letter to Collector of Customs Ang-Angco who upon perusing
it still hesitated to grant the release. Instead he suggested that the letter be amended in order to remove the ambiguity
appearing therein, but Mr. Lopez refused to amend the letter stating that the same was neither a permit nor a release.
Secretary of Finance Hernandez having been contacted by telephone, Collector of Customs Ang-Angco read to him
the letter after which the Secretary verbally expressed his approval of the release on the basis of said certificate.
Collector Ang-Angco, while still in doubt as to the propriety of the action suggested, finally authorized the release of
the concentrates upon payment of the corresponding duties, customs charges, fees and taxes.

When Commissioner of Customs Manuel P. Manahan learned of the release of the concentrates in question he
immediately ordered their seizure but only a negligible portion thereof remained in the warehouse. Whereupon, he
filed an administrative complaint against Collector of Customs Ang-Angco charging him with having committed a grave
neglect of duty and observed a conduct prejudicial to the best interest of the customs service. On the strength of this
complaint President Ramon Magsaysay constituted an investigating committee to investigate Ang-Angco composed
of former Solicitor General Ambrosio Padilla, as Chairman, and Atty. Arturo A. Alafriz and Lt. Col. Angel A. Salcedo,
as members. Together with Collector Ang-Angco, Mr. Aquiles J. Lopez, was also investigated by the same Committee,
who was also charged in a separate complaint with serious misconduct in office or conduct prejudicial to the best
interest of the State. As a result, Collector Ang-Angco was suspended from office in the latter part of December, 1956.

After the investigation, the committee submitted to President Magsaysay its report recommending that a suspension
of 15 days, without pay, be imposed upon Ang-Angco chargeable against the period of his suspension. On April 1,
1957, Collector Ang-Angco was reinstated to his office by Secretary Hernandez, but the decision on the administrative
case against him remained pending until the death of President Magsaysay. After around three years from the
termination of the investigation during which period Ang-Angco had been discharging the duties of his office, Executive
Secretary Natalio P. Castillo, by authority of the President, rendered a decision on the case on February 12, 1960
finding Ang-Angco "guilty of conduct prejudicial to the best interest of the service", and considering him resigned
effective from the date of notice, with prejudice to reinstatement in the Bureau of Customs.

Upon learning said decision from the newspapers, Collector Ang-Angco wrote a letter to President Carlos P. Garcia
calling attention to the fact that the action taken by Secretary Castillo in removing him from office had the effect of
depriving him of his statutory right to have his case originally decided by the Commissioner of Civil Service, as well
as of his right of appeal to the Civil Service Board of Appeals, whose decision under Republic Act No. 2260 is final,
besides the fact that such decision is in violation of the guaranty vouchsafed by the Constitution to officers or
employees in the civil service against removal or suspension except for cause in the manner provided by law.

In a letter dated February 16, 1960, Secretary Castillo, also by authority of the President, denied the request for
reconsideration. Not satisfied with this resolution, Collector Ang-Angco sent a memorandum to President Garcia
reiterating once more the same grounds on which he predicated his request for reconsideration. Again Secretary
Castillo, also by authority of the President, in letter dated July 1, 1960, denied the appeal. In this instance, Secretary
Castillo asserted that the President virtue of his power of control over all executive departments, bureaus and offices,
can take direct action and dispose of the administrative case in question inasmuch as the provisions of law that would
seem to vest final authority in subordinate officers of the executive branch of the government over administrative
matters falling under their jurisdiction cannot divest the President of his power of control nor diminish the same.

Hence, after exhausting all the administrative remedies available to him to secure his reinstatement to the office from
which he was removed without any valid cause or in violation of his right to due process of law, Collector Ang-Angco
filed before this Court the present petition for certiorari, prohibition and mandamus with a petition for the issuance of
a preliminary mandatory injunction. The Court gave due course to the petition, but denied the request for injunction.

The main theme of petitioner is that respondent Executive Secretary Natalio P. Castillo in acting on his case by
authority of the President in the sense of considering him as resigned from notice thereof, violated the guaranty
vouchsafed by the Constitution to officers and employees in the classified service in that he acted in violation of
Section 16 (i) of the Civil Service Act of 1959 which vests in the Commissioner of Civil Service the original and
exclusive jurisdiction to decide administrative cases against officers and employees in the classified service, deprived
him of his right of appeal under Section 18 (b) of the same Act to the Civil Service Board of Appeals whose decision
on the matter is final, and removed him from the service without due process in violation of Section 32 of the same
Act which expressly provides that the removal or suspension of any officer or employee from the civil service shall be
accomplished only after due process, and of Section 4, Article XII of our Constitution which provides that "No officer
or employee in the civil service shall be removed except for cause as provided for by law." Since petitioner is an officer
who belongs to the classified civil service and is not a presidential appointee, but one appointed by the Secretary of
Finance under the Revised Administrative Code, he cannot be removed from the service by the President in utter
disregard of the provisions of the Civil Service Act of 1959.

Respondents, on their part, do not agree with this theory entertained by petitioner. They admit that if the theory is to
be considered in the light of the provisions of the Civil Service Act of 1959, the same may be correct, for indeed the
Civil Service Law as it now stands provides that all officers and employees who belong to the classified service come
under the exclusive jurisdiction of the Commissioner of Civil Service and as such all administrative cases against them
shall be indorsed to said official whose decision may be appealed to the Civil Service Board of Appeals from whose
decision no further appeal can be taken. They also admit that petitioner belongs to the classified civil service. But it is
their theory that the pertinent provisions of the Civil Service Law applicable to employees in the classified service do
not apply to the particular case of petitioner since to hold otherwise would be to deprive the President of his power of
control over the officers and employees of the executive branch of the government. In other words, respondents
contend that, whether the officers or employees concerned are presidential appointees or belong to the classified
service, if they are all officers and employees in the executive department, they all come under the control of the
President and, therefore, his power of removal may be exercised over them directly without distinction. Indeed,
respondents contend that, if, as held in the case of Negado v. Castro, 55 O.G., 10534, the President may modify or
set aside a decision of the Civil Service Board of Appeals at the instance of the office concerned, or the respondent
employee, or may even do so motu propio, there would be in the final analysis no logical difference between removing
petitioner by direct action of the President and separating him from the service by ultimate action by the President
should an appeal be taken from the decision of the Civil Service Board of Appeals to him, or if in his discretion he
may motu proprio consider it necessary to review the Board's decision. It is contended that this ruling still holds true
in spite of the new provision wrought into the law by Republic Act 2260 which eliminated the power of review given to
the President because the power of control given by the Constitution to the President over officers and employees in
the executive department can only be limited by the Constitution and not by Congress, for to permit Congress to do
so would be to diminish the authority conferred on the President by the Constitution which is tantamount to amending
the Constitution itself (Hebron v. Reyes, L- 9124, July 28, 1958). Indeed this is the argument invoked by respondent
Castillo in taking direct action against petitioner instead of following the procedure outlined in the Civil Service Act of
1959 as may be seen from the following portion of his decision.

In connection with the second ground advanced in support of your petition, it is contended that in deciding the
case directly, instead of transmitting it to the Commissioner of Civil Service for original decision, his Office
deprived the respondent of his right to appeal to the Civil Service Board of Appeals. This contention overlooks
the principle that the President may modify or set aside a decision of the Civil Service Board of Appeals at the
instance of either the office concerned or the respondent employee, or may even do so motu proprio (Negado
vs. Castro, 55 O.G, No. 51, p. 10534, Dec. 21, 1959). There would therefore be no difference in effect between
direct action by the President and ultimate action by him should an appeal be taken from the decision of the
Commissioner of Civil Service or the Civil Service Board of Appeals. The result is that the President's direct
action would be the final decision that would be reached in case an appeal takes its due course.

Thus, we see that the main issue involved herein is whether the President has the power to take direct action on the
case of petitioner even if he belongs to the classified service in spite of the provisions now in force in the Civil Service
Act of 1959. Petitioner sustains the negative contending that the contrary view would deprive him of his office without
due process of law while respondents sustain the affirmative invoking the power of control given to the President by
the Constitution over all officers and employees, belonging to the executive department.

To begin with, we may state that under Section 16 (i) of the Civil Service Act of 1959 it is the Commissioner of Civil
Service who has original and exclusive jurisdiction to decide administrative cases of all officers and employees in the
classified service for in said section the following is provided: "Except as otherwise provided by law, (the Commissioner
shall) have final authority to pass upon the removal, separation and suspension of all permanent officers and
employees in the competitive or classified service and upon all matters relating to the employees." The only limitation
to this power is that the decision of the Commissioner may be appealed to the Civil Service Board of Appeals, in which
case said Board shall decide the appeal within a period of 90 days after the same has been submitted for decision,
whose decision in such case shall be final (Section 18, Republic Act 2260). It should be noted that the law as it now
stands does not provide for any appeal to the President, nor is he given the power to review the decision motu proprio,
unlike the provision of the previous law, Commonwealth Act No. 598, which was expressly repealed by the Civil
Service Act of 1959 (Rep. Act 2260), which provides that the decision of the Civil Service Board of Appeals may be
reversed or modified motu proprio by the President. It is, therefore, clear that under the present provision of the Civil
Service Act of 1959, the case of petitioner comes under the exclusive jurisdiction of the Commissioner of Civil Service,
and having been deprived of the procedure laid down therein in connection with the investigation and disposition of
his case, it may be said that he has been deprived of due process as guaranteed by said law.

It must, however, be noted that the removal, separation and suspension of the officers and employees of the classified
service are subject to the saving clause "Except as otherwise provided by law" (Section 16 [i], Republic Act No. 2260).
The question then may be asked: Is the President empowered by any other law to remove officers and employees in
the classified civil service?

The only law that we can recall on the point is Section 64 (b) of the Revised Administrative Code, the pertinent portion
of which we quote:

(b) To remove officials from office conformably to law and to declare vacant the offices held by such removed
officials. For disloyalty to the (United States) Republic of the Philippines, the (Governor-General) President of
 the Philippines may at any time remove a person from any position of trust or authority under the Government
of the (Philippine Islands) Philippines.

The phrase "conformably to law" is significant. It shows that the President does not have blanket authority move any
officer or employee of the government but his power must still be subject to the law that passed by the legislative body
particularly with regard the procedure, cause and finality of the removal of persons who may be the subject of
disciplinary action. Here, as above stated we have such law which governs action to be taken against officers and
employees in classified civil service. This law is binding upon President.

Another provision that may be mentioned is Section (D) of the Revised Administrative Code, which provides:

Power to appoint and remove. The Department Head, the recommendation of the chief of the Bureau or
office concerned, shall appoint all subordinate officers and employees appointment is not expressly vested by
law in the (Governor-General) President of the Philippines, and may remove or punish them, except as
especially provided otherwise, in accordance the Civil Service Law.

The phrase "in accordance with the Civil Service is also significant. So we may say that even granting for
administrative purposes, the President of the Philippines is considered as the Department Head of the Civil Service
Commission, his power to remove is still subject to the Civil Service Act of 1959, and we already know with regard to
officers and employees who belong to classified service the finality of the action is given to the Commissioner of Civil
Service or the Civil Board of Appeals.

Let us now take up the power of control given to President by the Constitution over all officers and employees in the
executive department which is now in by respondents as justification to override the specific visions of the Civil Service
Act. This power of control couched in general terms for it does not set in specific manner its extent and scope. Yes,
this Court in the case of Hebron v. 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,"1 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.

That meaning is also the meaning given to the word "control" as used in administrative law. Thus, the Department
Head pursuant to Section 79(C) is given direct control of all bureaus and offices under his department by virtue of
which he may "repeal or modify decisions of the chiefs of said bureaus or offices", and under Section 74 of the same
Code, the President's control over the executive department only refers to matters of general policy. The term "policy"
means a settled or definite course or method adopted and followed by a government, body, or individual,2and it cannot
be said that the removal of an inferior officer comes within the meaning of control over a specific policy of government.

But the 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 provisions 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 give 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 v. 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 v. Romero, 84 Phil. 740, 754)
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 V. Romero, supra), but not with regard to those officers or 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. One such law is the Civil Service Act of
1959.

We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of
departments it may limit and restrict power of removal as it seem best for the public interest. The constitutional
authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal
by such laws as Congress may enact in relation to the officers so appointed. The head of a department has
no constitutional prerogative of appointment to officers independently of legislation of Congress, and by such
legislation he must be governed, not only in making appointments but in all that is incident thereto. (U.S. v.
Perkins, 116 U.S. 483)

In resume, we may conclude that the action taken by respondent Executive Secretary, even with the authority of the
President, in taking direct action on the administrative case of petitioner, without submitting the same to the
Commissioner of Civil Service, is contrary to law and should be set aside.

WHEREFORE, it is hereby ordered that petitioner be immediately reinstated to his office as Collector of Customs for
the Port of Manila, without prejudice of submitting his case to the Commissioner of Civil Service to be dealt with in
accordance with law. No costs.

Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Parades, Dizon, Regala and Makalintal, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-22754 December 31, 1965

RUBEN A. VILLALUZ, petitioner,

vs.
CALIXTO ZALDIVAR, ET AL., respondents.

Magtanggol C. Gunigundo and Juan T. David for petitioner.

Office of the Solicitor General for respondents.

BAUTISTA ANGELO, J.:

Petitioner seeks his reinstatement as Administrator of the Motor Vehicles Office with payment of back salaries in a
petition filed before this Court on April 1, 1964.

He alleged that he was nominated as chief of said office on May 20, 1958 and two days thereafter his nomination was
confirmed by the Commission on Appointments; that on May 26, 1958 he took his oath of office as such after having
been informed of his nomination by then Acting Assistant Executive Secretary Sofronio C. Quimson; that in a letter
dated January 28, 1960 addressed to the President of the Philippines by Congressman Joaquin R. Roces as Chairman
of the Committee on Good Government of the House of Representatives, the latter informed the former of the findings
made by his Committee concerning alleged gross mismanagement and inefficiency committed by petitioner in the
Motor Vehicles Office which are summed up in the letter, as follows: (1) malpractice in office resulting in huge losses
to the government; (2) failure to correct inadequate controls or intentional toleration of the same, facilitating thereby
the commission of graft and corruption; and (3) negligence to remedy unsatisfactory accounting; that as a result of
said findings. Congressman Roces recommended the replacement of petitioner and of his assistant chief Aurelio de
Leon as well as the complete revamp of the offices coming under the Motor Vehicles Office by the new chief who may
be appointed thereafter; that having been officially informed of the content of said letter, then Secretary of Public
Works and Communications furnished petitioner with a copy thereof requiring him to explain within 72 hours why no
administrative action should be taken against him relative to the charges contained in the letter; that petitioner
answered the letter as required wherein he explained and refuted in detail each and everyone of the charges contained
in the letter of Congressman Roces; that on February 15, 1960, the then Executive Secretary Natalio P. Castillo
suspended petitioner as Administrator of the Motor Vehicles Office, having thereupon created an investigating
committee with the only purpose of investigating the charges against petitioner and his assistant Aurelio de Leon, and
to undertake the investigation a prosecution panel was created headed by Special Prosecutor Emilio A. Gancayco;
that after the investigation said committee submitted its report to the President of the Philippines who thereafter issued
Administrative Order No. 332 decreeing the removal from office of petitioner; that as a result of petitioner's removal
Apolonio Ponio was appointed to take his place as acting administrator; and that, after having been officially notified
of his removal, petitioner filed a motion for reconsideration and/or reinstatement, and when this was denied, he filed
the instant petition before this Court.

Respondents in their answer denied the claim of petitioner that the charges contained in the letter of Congressman
Roces were not directed against him but against his office in general for the truth is that he was, specifically charged
with mismanagement, gross inefficiency and negligence in the performance of his duties as Chief of the Motor Vehicles
Office, and as a result he was required to the same within 72 hours to explain why no disciplinary action should be
taken against him. Respondents also denied that petitioner was investigated without being accorded due process is
required by law for in fact he was given every reasonable opportunity to present his defense, to secure the attendance
of witnesses, and to produce documents in his behalf in a manner consistent with administrative due process.
Respondent also averred that the President of the Philippines, contrary to petitioner's claim, has jurisdiction to
investigate and remove him since he is a presidential appointee who belongs to the non-competitive or unclassified
service under Section 5 of Republic Act No. 2260. Respondents finally averred that the letter of Congressman Joaquin
R. Roces is in effect a valid administrative complaint because it contained specific charges which constitute just
causes for his suspension and removal; that said charges need not be sworn to for the Chief Executive, as
administrative head of petitioner, is empowered to commence administrative proceedings motu proprio pursuant to
Executive Order No. 370, series of 1941, without need of any previous verified complaint. And as special defense
respondents averred that petitioner is guilty of laches for having allowed almost four years before instituting the present
action.

There is merit in the claim that petitioner, being a presidential appointee, belongs to the non-competitive or unclassified
service of the government and is such he can only be investigated and removed from office after due hearing the
President of the Philippines under the principle that "the power to remove is inherent in the power to appoint" as can
be clearly implied from Section 5 of Republic Act No. 2260. Such is what we ruled in the recent case of Ang-Angco
wherein on this point we said:

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 v. Romero, supra), but not with regard
to those officers or 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 inferior officers, in the President alone, in the courts, or in the head of departments"
(Article VII, Section 10 [3], Constitution). (Ang-Angco v. Castillo, et al., L-17169, November 30, 1963).

Consequently, as a corollary to the foregoing ruling, we may state that the Commissioner of Civil Service is without
jurisdiction to hear and decide the administrative charges filed against petitioner because the authority of said
Commissioner to pass upon questions of suspension, separation, or removal can only be exercised with reference to
permanent officials and employees in the classified service to which classification petitioner does not belong. This is
also what we said in the Ang-Angco case when, in interpreting Section 16 (i) of Republic Act No. 2260, we emphasized
that only permanent officers and employees who belong to the classified service come under the exclusive jurisdiction
of the Commissioner of Civil Service.

There is, therefore, no error of procedure committed by respondents insofar as the investigation and disciplinary action
taken against petitioner is concerned, even if he is under the control and supervision of the Department of Public
Works, in view of the reason we have already stated that he is a presidential appointee who comes exclusively under
the jurisdiction of the President. The following rationale supports this view:

Let us now take up the power of control given to the President by the Constitution over all officers and
employees in the executive departments which is now involved by respondent 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 v. Reyes, supra, 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.

That meaning is also the meaning given to the word "control" as used in administrative law. Thus, the
Department Head pursuant to Section 79 (c) is given direct control of all bureaus and offices under his
department by virtue of which he may "repeal or modify decisions of the chiefs of said bureaus or offices," and
under Section 74 of the same Code, the President's control over the executive department only refers to
matters of general policy. The term "policy" means a settled or definite course or method adopted and followed
by a government, body or individual, and it cannot be said that the removal of an inferior officer comes within
the meaning of control over a specific policy of government. (Ang-Angco v. Castillo, et al., supra)

With regard to the claim that the administrative proceedings conducted against petitioner which led to his separation
are illegal simply because the charges preferred against him by Congressman Roces were not sworn to as required
by Section 72 of Republic Act No. 2260, this much we can say: said proceedings having been commenced against
petitioner upon the authority of the Chief Executive who was his immediate administrative head, the same may be
commenced by him motu proprio without previous verified complaint pursuant to Executive Order No. 370, series of
1941, the pertinent provisions of which are is follows:
 (1) Administrative proceedings may be commenced a government officer or employee by the head or chief of
the bureau or office concerned motu proprio or upon complaint of any person which shall be subscribed under
oath by the complainant: Provided, That if a complaint is not or cannot be sworn to by the complainant, the
head or chief of the bureau or office concerned may in his discretion, take action thereon if the public interest
or the special circumstances of the case, so warrant.1

Finally, on the theory that the instant petition partakes of the nature of quo warranto which seeks petitioners
reinstatement to his former position as Administrator of the Motor Vehicles Office, we are of the opinion that it has
now no legal raison d'etre for having been filed more than one year after its cause of action had accrued. As this Court
has aptly said: "a delay of slightly over one (1) year was considered sufficient ... to be an action for mandamus, by
reason of laches or abandonment of office. We see no reason to depart from said view in the present case, petitioner
herein having allowed about a year and a half to elapse before seeking reinstatement." (Jose V. Lacson, et al., L-
10177, May 17, 1957).

WHEREFORE, petition is denied. No costs.

Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Bengzon, JJ., concur.

Zaldivar, J., took no part.