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Aytona v.

Castillo

[note: the events occurred under the 1935 constitution when there was no constitutional
prohibition against midnight appointments]

On December 29, 1961, President Garcia extended 350 ad interim


appointments(CONA was not in session). Among whom is Aytona who was appointed
as Governor of the Central Bank. Aytona took his oath the same day.

On December 30, 1961, President-elect Macapagal assumed office.


On December 31, 1961 he issued Administrative Order No 2. (AO2) cancelling all 350
ad interim appointments by President Garcia.
On January 1, 1962, President Macapagal selected Castillo as ad interim Governor
of the Central Bank. Castillo qualified immediately.

On January 2, 1962, both Aytona and Castillo exercised powers of their office, although
Castillo informed Aytona of his title. Hostility developed within the Central Bank. The
next day, Aytona was definitely prevented from holding office.

Aytona instituted this quo warranto proceeding challenging Castillos’s right to office.
Aytona contends that he was validly appointed and qualified for the post. Since the
post was validly occupied, Castillo’s subsequent appointment was void.

Castillo replies that the appointment of Aytona had been revoked by Administrative
Order No. 2 of Macapagal.

Issue: Is Aytona’s ad interim appointment by President Garcia valid, considering


that that his appointment was extended on the last day of President Garcia’s
term?

Held: Yes Valid.

President Macapagal issued AO2 because of these reasons, among others:


 the outgoing President should have refrained from filling vacancies to give
the new President OPPORTUNITY to consider names in the light of his
new policies, which were approved by the electorate in the last elections
 (2) these scandalously hurried appointments in mass do not fall within the
INTENT AND SPIRIT OF THE CONSTITUTIONAL
PROVISION AUTHORIZING THE ISSUANCE OF AD
INTERIM appointments
 (3) the appointments were irregular, immoral and unjust, because they were
issued only upon the CONDITION THAT THE APPOINTEE
WOULD IMMEDIATELY QUALIFY obviously to prevent a recall or
revocation by the incoming President, with the result that those deserving of
promotion or appointment who preferred to be named by the new President
declined and were by-passed; and
 (4) the abnormal conditions surrounding the appointment and qualifications
evinced a desire on the part of the outgoing President MERELY
SUBVERT THE POLICIES OF THE INCOMING
ADMINISTRATION.

It is MANY OF THE PRESIDENT GARCIA’S


admitted that
“MIDNIGHT APPOINTEES” DID NOT QUALIFY. During the day of the
midnight appointments, there was a scramble in Malacañang of candidates for positions
trying to get their written appointments. There was unusual hurry in the issuance of the
appointments — which were not coursed through the Department Heads — and in the
confusion, a woman appointed judge was designated “Mr.” and a man was designated
“Madam.” One appointee who got his appointment and was required to qualify, resorted
to the rush of asking permission to swear before a relative official, and then never
qualified. Because of the haste and irregularities, some judges of first instance qualified
for districts wherein no vacancies existed, because the incumbents had not qualified
for other districts to which they had been supposedly transferred or promoted.

We are informed, it is Malacañan’s practice—which we find to be


logical—to submit ad interim appointments only when the
Commission on Appointments is in session. One good reason for the
practice is that only those who have accepted the appointment and
qualified are submitted for confirmation. Nevertheless, this time,
Malacañan submitted its appointments on the same day they were
issued; and the Commission was not then in session; obviously
because it foresaw the possibility that the incoming President would
refuse to submit later the appointees of his predecessor. AS A
RESULT, AS ALREADY ADVERTED TO, SOME PERSONS WHOSE
NAMES WERE SUBMITTED FOR CONFIRMATION HAD NOT
QUALIFIED NOR ACCEPTED THEIR APPOINTMENTS.

Of course, nobody will assert that President Garcia ceased to be the President 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 “care-
taker” administration. He was duty bound to prepare for the orderly transfer of authority
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 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 vacancies in important
positions, if few, and so spaced 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 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 Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions1 irrespective of fitness
and other conditions, and thereby deprive the new administration of an opportunity
to make the corresponding appointments.

1) Normally, when the President makes appointments the consent of the


Commission on Appointments, he has benefit of their ADVICE.
2) When he makes ad interim appointments, he exercises a special prerogative and
is bound to be PRUDENT to insure approval of his selection either previous
consultation with the members of the Commission or by thereafter explaining to them the
reason such selection.

Where, however, as in this case, the Commission on Appointments that will


consider the appointees is different from that existing at the time of the
appointment and where the names are to be submitted by successor, who may not
wholly approve of the selections, the President should be DOUBLY
CAREFUL in extending such appointments. Now, it is hard to believe that in
signing 350 appointments in one night, President Garcia exercised such “double care”
which was required and expected of him; and therefore, there seems to be force to the
contention that these appointments fall beyond the intent and spirit of the constitutional
provision granting to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this
Court resolves that it must decline to disregard the Presidential Administrative Order No.
2, cancelling such “midnight” or “last-minute” appointments.

SEPARATE OPINIONS

Padilla (concurring)

If the ad interim appointments made by the President during the recess of the Congress
are effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress — a limitation on the power of the President—there is a
cogent and strong reason for holding to be the intent of the framers of the Constitution
that such appointments made by him ceased to be valid and effective after the
term of the Congress existing at the time of the making of such appointments had
ended or expired. The end or expiration of the of the Congress existing at the
time of the making of the ad interim appointments by the President is a stronger
cause or reason for the lapse or ineffectuality of such appointments than “the
next adjournment of the Congress.” SINCE
THAT CONGRESS NO
LONGER EXISTS AND HENCE CAN NO LONGER
CONVENE AND THEN “ADJOURN.” The effectivity and validity of
the appointment of the petitioner as Governor of the Central Bank ceased, lapsed
and expired on of December 30 1961. He is no longer entitled hold the office to which
he had been appointed. My vote, therefore, is for the denial of the petition.

Bautista Angelo (concurring)

The term “recess” has a definite legal meaning. It means the interval between a
session of Congress that has adjourned and another of the same Congress. It
DOES NOT REFER TO THE INTERVAL BETWEEN
THE SESSION OF ONE CONGRESS AND THAT
OF ANOTHER. In that case the interval is not referred to as a “recess”
but an adjournment sine die. Since the appointments in question were made after
the Fourth Congress has adjourned sine die and ceased to function on December
30, 1961, they cannot partake of the nature of ad interim appointments within the
meaning of the Constitution.

An ad interim appointment, to be complete, needs to be submitted to the Commission on


Appointments one the same is constituted. This is reflected in the Constitution when it provides
that “such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress” (Section 10, Paragraph 4, Article
VII). this mean that it must be submitted to the commission on
appointments of the congress that has created it. it cannot be
submitted to the commission on appointments of a different
congress. SINCE THE APPOINTMENTS IN QUESTION WERE
SUBMITTED TO THE COMMISSION ON APPOINTMENTS
WHICH CEASED TO FUNCTION on december 30, 1961, they
lapsed upon the cessation of said commission. consequently, they
can be recalled by the new chief executive.
XXX
In relying on certain cases for the proposition that once an appointee has taken
the oath of office his appointment becomes irrevocable petitioner fails to
consider that in said cases there had either been an ACTUAL
DISCHARGE OF DUTY AND ACTUAL PHYSICAL
POSSESSION or assumption of office following the oath-taking as to constitute
the appointee the occupant of the position from which he cannot be removed without
cause.

Concepcion (concurring in part and dissenting in part)

Insofar as the majority resolution relied upon discretion and the equities of the case in
denying said writs, I concur, therefore, in the aforementioned resolution.

However, I cannot see my way clear to subscribing the observations therein made
representing the motives allegedly underlying petitioner’s appointment and that of many
others who are not parties in this case, and justifying the revocation of such appointments.
My reasons, among others, are: .

1. Save where the incumbent has a temporary appointment or is removable at the


will of the appointing power, an appointment ONCE COMPLETE, by the
performance of all acts required by law of the appointing power, is
IRREVOCABLE.
May an appointment be revoked by reason of error or fraud? This question was
taken up in Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Scofield vs. Starr. In both
cases, the fraud or mistake alluded to referred to the MANNER OF VOTING or of
counting the ballots cast, NOT TO THE INTENT of the voters in choosing a
particular appointee.

2. XXX
AN AD INTERIM APPOINTMENT, MADE DURING A RECESS OF
CONGRESS, IS COMPLETE AND IRREVOCABLE UPON THE
PERFORMANCE OF THE LAST ACT REQUIRED BY LAW FROM THE
APPOINTING POWER, even without previous notice to the appointee, or
acceptance by him, or without subsequent action of the legislative organ that may
terminate its effectivity.

3. The irrevocability of the ad interim appointment adverted to above becomes more apparent
when we consider that the House, Commission on Appointments or other agency of Congress
charged with the function of terminating the effectivity of such appointment, may act thereon, by
approving or disapproving the same, even though the Executive had not submitted or
forwarded it to said House, Commission or agency of Congress, and even though either the
outgoing or the incoming Executive shall have submitted for confirmation the name of a
subsequent appointee in lieu of the first one..
4. The foregoing goes to show, also, that the question whether the Commission on
Appointments is or is not a continuing body can not affect the determination of the case.
Besides, the constitutional provision making an ad interim appointment, if not
disapproved by the Commission on Appointments, effective only until the next
adjournment of Congress, clearly indicates that such COMMISSION MUST HAVE AN
OPPORTUNITY TO APPROVE OR DISAPPROVE the appointment and that its
inaction, despite such opportunity, at the session of Congress next following the making
of the appointment—during which it could have met, and, probably, did meet—must be
understood as an expression of unwillingness to stamp its approval upon the act of the
executive.

NO SUCH OPPORTUNITY EXISTS WHEN THE OUTGOING CONGRESS HAS NOT


HELD ANY SESSION, REGULAR OR SPECIAL AFTER THE MAKING OF THE
APPOINTMENT AND BEFORE THE EXPIRATION OF THE TERM OF SAID
CONGRESS, and the new Congress has not, as yet, organized itself or even met.

5. The American rule concerning irrevocability of appointments is bolstered up in the


Philippines by Section 4 of Article XII of the Constitution, which provides that—”no
officer of employee in the Civil Service shall be removed except for cause as
provided by law.” (Article VII, Section 4.) .

6. Once an appointee has qualified, he acquires a legal, not merely equitable


right, which is protected not only by statute, but, also by the Constitution, for it cannot
be taken away from him, either by revocation of the appointment or by removal,
EXCEPT FOR CAUSE, AND WITH PREVIOUS NOTICE AND
HEARING, consistently with said Section 4 of Article XII of our fundamental law, and
with the constitutional requirement of due process

7. Pursuant to the Jones Law, “appointments made while the Senate is not in session
shall be effective either until disapproval or until the next adjournment of the Senate”.
Hence, the term “RECESS” appearing in Section 10(4) of Article VII of our
Constitution SHOULD
BE CONSTRUED TO MEAN “WHILE
CONGRESS IS NOT IN SESSION” and this is confirmed by the
practice consistently observed in the Philippines for time immemorial, as well as the ad
interim appointment extended by President Macapagal to respondent Castillo.

8. 8. The case of McChesney vs. Sampson (23 S. W. 2d. 584) has, also, been invoked
in support of the proposition that “an ad interim appointment is not complete until
the appointee takes the oath of office and actually takes possession of the
position or enters upon the discharge of its duties” and that, before such actual
taking of possession, though after the oath taking, the appointee may be removed
without cause.

We have not found in said case anything justifying such claim.


Although, in addition to accepting the appointment, McChesney had qualified and
exercised the function of the office, the decision of the Court clearly indicates that it was
not necessary for him either to discharge the duties of the office or even to take the oath
of office, in order to render his appointment irrevocable.

TWO (2)
9. 9. Most, if not all appointments made by the President have
ASPECTS, NAMELY, THE LEGAL AND THE POLITICAL. The first
refers to his authority to make the appointment.

Indeed, I can hardly conceive of any question more patently and characteristically
political than this one, or more appropriate for determination of said body

10. 10. In Osmeña vs. Pendatum (L-17144, October 28, 1960), we refused to disturb
the action of the House of Representatives in suspending a member thereof—who had
made derogatory imputations against the President of the Philippines—upon the ground
that such imputations constituted a breach of the courtesy due to a coordinate branch of
the Government. Yet, in the present case, imputations similarly derogatory to the same
branch of the Government are, in effect, made in the majority resolution.

11. 11. In the present case, we have completely reversed our stand on the
principle of separation of powers. We have inquired into the motives of the
Executive department in making the appointments in question, although it is well
settled, under the aforementioned principle, that: .

Generally courts cannot inquire into the motive, policy, wisdom, or expediency of
legislation.

The justice, wisdom, policy, necessity, or expediency, of a law which is within its powers
are for the legislature, and are not open to inquiry by the courts, except as an aid to
proper interpretation

Barrera Dissenting

In my opinion, the fundamental questions which this Court is called upon to resolve in
the present case a specifically: .

1.Is the ad interim, appointment of petitioner Aytona valid when extended? .

2.If so, did it automatically lapse with the ending the term of office of the twelve
Congressmen composing one-half of the membership of the Commission
Appointments? .

3. May this appointment be legally recalled or withdrawal after Aytona has qualified? .
I. Aytona was Validly Appointed

It is in this connection and evidently in a desire to explain the opinion of Judge Cooley
that the court made the pronouncement relied upon by respondents, thus: .

… The recess here referred to by Judge Cooley we think should be construed to mean
only the intermission between sittings of the same body at its regular or adjourned
session, and not to the interval between the final adjournment of one body and the
convening of another at the next regular session. When applied to a legislative body, it
means a temporary dismissal and not an adjournment sine die.

In support of this view, counsel cites the case of Tipton v. Parker, 71 Ark. 193, from
which the foregoing quotation was taken.

An examination of this case, however, discloses that it did not refer to the power of
the President to make ad interim appointments. The pronouncement was made in
connection with the interpretation of Section 17, Article 5 of the Constitution of the
State of Arkansas. The case involved the VALIDITY OF THE CERTIFICATE OF THE
AUDITOR with reference to the legality of the EXPENSES OF A COMMITTEE OF
THE STATE SENATE authorized by the latter to make certain investigations
beyond the duration of the session of the General Assembly. The court, in
declaring the certificate without sanction of law, stated:

“The Senate has NO POWER BY RESOLUTION OF ITS OWN TO EXTEND ITS


SESSION, and NEITHER DID IT HAVE POWER TO SUCH SEPARATE RESOLUTION
TO CONTINUE ITS COMMITTEE, A MERE AGENCY OF THE BODY, BEYOND THE
TERM OF THE BODY ITSELF which created it.” .

in view of the provisions of the aforementioned Section 17, Article 5 of the state
Constitution prescribing “that the regular biennial session of the Legislature shall not
exceed 60 days, unless by 2/3 vote of the members elected to each house, and section
23 requiring a vote of the majority of each house to enact a law or pass a resolution
having the force and effect of a law”. Apparently an opinion of Judge Cooley
seemingly to the contrary was cited to refute this view of the court, and so the decision
went on to say:

Judge Cooley: Each house must also be allowed to proceed in its own way in the
collection of such information may seem important to a proper discharge of its functions;
and whenever it is deemed desirable that witnesses should be examined, the power
and the authority to do so is very properly referred to a committee, with any such
powers short of final legislative or judicial action as may seem necessary or expedient in
the particular case. Such a committee has no authority to sit during a recess of the
housewhich has appointed it, without its permission to that effect. BUT THE
HOUSE IS AT LIBERTY TO CONFER SUCH AUTHORITY IF IT
SEES FIT.
The conclusion reached by the court cannot be otherwise. The case refers to the
powers of one house of the state Legislature, with the concurrence of the other, to
confer authority upon its own committee to act beyond the duration of the session of the
General Assembly. Certainly, Judge Cooley’s view that each house has power to confer
authority to its committee to act during a recess must be understood to exist only during
the life of the house creating the committee. It cannot go beyond its own existence, that
is, beyond its adjournment sine die.
But this ruling is no argument that the Executive’s power to make appointments
during such adjournment sine die does not exist just because a house of the
legislature lacks power to authorize its committee to act during the same
adjournment. ONE REFERS TO THE POWER OF A DEFUNCT
BODY TO ACT BEYOND ITS LIFE; THE OTHER REFERS TO
THE POWER OF ANOTHER AUTHORITY, THE EXECUTIVE,
TO PERFORM ITS FUNCTIONS AFTER THE EXPIRATION OF
THAT OTHER BODY. Non-existence of the first does not mean non-
existence of the other.

It was evidently intended by the framers of the Constitution that it should mean
something real, not something imaginary; something actual, not something fictitious.
They used the word as the mass of mankind then understood it and now understand it.
IT MEANS, IN OUR JUDGMENT, IN THIS CONNECTION THE PERIOD OF TIME
WHEN THE SENATE IS NOT SITTING IN REGULAR OR EXTRAORDINARY
SESSION AS A BRANCH OF THE CONGRESS, OR IN EXTRAORDINARY SESSION
FOR THE DISCHARGE OF EXECUTIVE FUNCTIONS; when its members owe no
duty of attendance; when its Chamber is empty; when, because of its absence, it
cannot receive communications from the President or participate as body in making
appointments.” .

II. Lapsing of Aytona’s Appointment

It is contended for the respondents that since 12 members of the Commission on


Appointments ceased to be such upon the expiration of their term of office at
midnight of December 29, 1961, the Commission on Appointments likewise
ceased to exist on the theory that creation can not exist beyond the life of its
creator at least with respect to one-half of its members. This seems to stem from
the WRONG NOTION THAT THE COMMISSION ON APPOINTMENTS IS A
CREATURE OF THE CONGRESS. This confuses the Commission on Appointments as
a constitutional body with its members.
THE BODY CONTINUED TO EXIST, BUT ONLY ITS
MEMBERSHIP CHANGES PERIODICALLY. When the Constitution
provides in Section 13 of Article 6 thereof that “the Electoral Tribunals and the
Commission on Appointments shall be constituted within 30 days after the Senate and
the House of Representatives shall have been organized with the election of their
President and Speaker, respectively”, it did not mean that the Senate and the House of
Representatives thereby create said bodies, no more than the President can be said to
create the Supreme Court by appointing the Justices therein. It simply ordained that
the Commission be constituted or organized by electing the members thereof,
whose positions have already been created in virtue of Section 12 of the same
Constitution.

To hold the Electoral Tribunals and the Commission on Appointments are non-existing
during the period from December 30, 1961 to January 22, 1962 (and during the
corresponding period every four years thereafter) will result in an absurdity and a
situation destructive of the normal processes provided in the Constitution. One of such
absurd results would be that no electoral protest against any elected and proclaimed
congressman or senator can be legally filed with the Electoral Tribunals within the
period prescribe by their rules, that is, within fifteen days following the proclamation of
the results of the election, which period falls within the time when the Electoral Tribunals
(as is the case of Commission on Appointments) are allegedly non-existent.

III. III. May the appointment of Aytona be legally recalled or withdrawn after he has
qualified for the position to which he was appointed? .

Precedents are to the effect that when once an appointment has been extended
by the Chief Executive who, as is provided in our Constitution, has the sole
power of appointment subject only to the consent of the Commission on
Appointments, and the appointee has accepted the appointment, the same becomes
complete and the appointing power can not withdraw it except in cases where the
tenure of the appointee is at the Chief Executive’s pleasure or upon grounds justifying
removal and after due process. This is not because the appointment constitutes a
contract (for truly a public office can not be subject of any contract), but because
of the provisions of the Constitution itself to the effect that “no officer or
employee in the Civil Service shall be removed or suspended except for cause as
provided by law.”

IF, THEREFORE, THE RECALL OR THE WITHDRAWAL OF THE


APPOINTMENT OF AYTONA WAS NOT AUTHORIZED BY LAW, THEN
HIS ASSUMPTION OF THE FUNCTIONS OF HIS OFFICE ON JANUARY
2, 1962 WAS CLEARLY WITHIN HIS LEGAL RIGHT AND THE
INTERFERENCE OF CASTILLO, AGGRAVATED BY THE ASSISTANCE
OR AT LEAST THE PRESENCE OF MEMBERS OF THE ARMED
FORCES, WAS CLEARLY UNLAWFUL.
The role of courts in our scheme of government is to
interpret the law and render justice under it. This simply means that
whatever may be our own personal feelings as to the propriety, morality, or wisdom of
any official act or actuation of a public officer or any agency of the government within
their respective competence brought to the attention of the Court for adjudication, they
should not be permitted to prevail over clear legal considerations, for ours is a regime
under the Rule of Law.