POWER OF APPOINTMENT
to fill public office. Such exception can be found
a) Basis
GPI v SPRINGER
FACTS: Sometime in the 1900s, the National
Coal Company (NCC) was created by the
Philippine Congress. The law created it (Act No.
2822) provides that: “The voting power … shall
be vested exclusively in a committee consisting
of the Governor-General, the President of the
Senate, and the Speaker of the House of
Representatives.”
In November 1926, the Governor-General
(Leonard Wood) issued E.O. No. 37 which
divested the voting rights of the Senate
President and House Speaker in the NCC. The
EO emphasized that the voting right should be
solely lodged in the Governor-General who is
the head of the government (President at that
time was considered the head of state but does
not manage government affairs). A copy of the
said EO was furnished to the Senate President
and the House Speaker.
However, in December 1926, NCC held its
elections and the Senate President as well as
the House Speaker, notwithstanding EO No. 37
and the objection of the Governor-
General, still elected Milton Springer and four
others as Board of Directors of NCC. Thereafter,
a quo warranto proceeding in behalf of the
government was filed against Springer et al
questioning the validity of their election into
the Board of NCC.
ISSUE: WoN the Senate President as well as the
House Speaker can validly elect the Board
Members of NCC.
HELD: No. E.O. No 37 is valid. It is in accordance
with the doctrine of separation of powers. The
Supreme Court emphasized that the legislature
creates the public office but it has nothing to
do with designating the persons to fill the
office. Appointing persons to a public office is
essentially executive. The NCC is a government
owned and controlled corporation. It was
created by Congress. To extend the power of
Congress into allowing it, through the Senate
President and the House Speaker, to appoint
members of the NCC is already an invasion of
executive powers. The Supreme Court however
notes that indeed there are exceptions to this
rule where the legislature may appoint persons
in the appointment by the legislature of
persons to fill offices within the legislative
branch – this exception is allowable because it
does not weaken the executive branch.
b) With Concurrence of COA
Article VII, Section 15:
Two months immediately before the next
presidential elections and up to the end of his
term, a President or Acting President shall not
make appointments, except temporary
appointments to executive positions when
continued vacancies therein will prejudice
public service or endanger public safety.
Article VII, Section 16:
The President shall nominate and, with the
consent of the Commission on Appointments,
appoint the heads of the executive
departments, ambassadors, other public
ministers and consuls, or officers of the armed
forces from the rank of colonel or naval
captain, and other officers whose
appointments are vested in him in this
Constitution. He shall also appoint all other
officers of the Government whose
appointments are not otherwise provided for
by law, and those whom he may be authorized
by law to appoint.
The Congress may, by law, vest the
appointment of other officers lower in rank in
the President alone, in the courts, or in the
heads of departments, agencies, commissions,
or boards.
The President shall have the power to make
appointments during the recess of the
Congress, whether voluntary or compulsory,
but such appointments shall be effective only
until disapproved by the Commission on
Appointments or until the next adjournment of
the Congress.
Under the provisions of the 1987 Constitution,
there are four (4) groups of officers whom the
President shall appoint. These four (4) groups
are:
First, the heads of the executive departments,
ambassadors, other public ministers and
consuls, officers of the armed forces from the
rank of colonel or naval captain, and other
officers whose appointments are vested in him
in this Constitution;
Second, all other officers of the Government
whose appointments are not otherwise
provided for by law;
Third, those whom the President may be
authorized by law to appoint;
Fourth, officers lower in rank whose
appointments the Congress may by law vest in
the President alone.
RUFINO v ENDRIGA
 Appointing authority may be given to
other officials than the President
provided the appointment is in a rank
lower than the appointing official.
FACTS: Two groups of appointed members of
the Board of Trustees of CCP are contesting
each other’s appointment. The Endriga group,
sitting as current members, was appointed by
then-President Ramos and is assailing the
appointment of the Rufino group, replacing all
7 members of the Endriga group, by then-
President Estrada. Endriga group avers that the
appointment into the Board of the Rufino
group transgressed PD 15 – creation of Board
of Trustees of CCP. As stated in PD 15, Section
6, appointment into the Board shall only be
made by a majority vote of the trustees;
presidential appointments can only be made
when the Board is entirely vacant to uphold the
CCP’s charter of independence from pressure or
politics.
Meanwhile, Rufino group stands by their
appointment since the provision on
appointments stated in Section 6, PD 15 is
violative of Section 16, Article 7 of the
Constitution. The Board cannot invoke the
charter of autonomy to extend to appointment
of its members.
ISSUE: WoN PD 15, Section 6 allowing
appointments made by trustees of their fellow
members is constitutional
RULING: No, PD 15, Section 6 allowing
appointments of members by the trustees
themselves is UNCONSTITUTIONAL. While it is
stated that appointing powers may be
delegated by the President, such power is
limited in scope to include only ranks lower
than the appointing authority. In the case, an
appointment of a member made by a fellow
member transgresses Article 7, Section 16 (1)
since both positions are equal in nature. CCP
cannot invoke autonomy prescribed in its
charter as an exemption from the limitation of
delegative appointing power because such
invocation puts CCP outside the control of the
President
SARMIENTO v MISON
FACTS: Mison was appointed as the
Commissioner of the Bureau of Customs and
Carague as the Secretary of the Department of
Budget, without the confirmation of the
Commission on Appointments. Sarmiento
assailed the appointments as unconstitutional
by reason of its not having been confirmed by
CoA.
ISSUE:Whether or not the appointment is valid.
RULING:
Yes. The President acted within her
constitutional authority and power in
appointing Salvador Mison, without submitting
his nomination to the CoA for confirmation. He
is thus entitled to exercise the full authority and
functions of the office and to receive all the
salaries and emoluments pertaining thereto.
Under Sec 16 Art. VII of the 1987 Constitution,
there are 4 groups of officers whom the
President shall appoint:
1st, appointment of executive departments and
bureaus heads, ambassadors, other public
ministers, consuls, officers of the armed forces
from the rank of colonel or naval captain, and
other officers with the consent and
confirmation of the CoA.
2nd, all other Government officers whose
appointments are not otherwise provided by
law;
3rd those whom the President may be
authorized by the law to appoint;
4th, low-ranking officers whose appointments
the Congress may by law vest in the President
alone.
First group of officers is clearly appointed with
the consent of the Commission on
Appointments. Appointments of such officers
are initiated by nomination and, if the
nomination is confirmed by the Commission on
Appointments, the President appoints.
2nd, 3rd and 4th group of officers are the
present bone of contention. By following the
accepted rule in constitutional and statutory
construction that an express enumeration of
subjects excludes others not enumerated, it
would follow that only those appointments to
positions expressly stated in the first group
require the consent (confirmation) of the
Commission on Appointments.
It is evident that the position of Commissioner
of the Bureau of Customs (a bureau head) is
not one of those within the first group of
appointments where the consent of the
Commission on Appointments is required. The
1987 Constitution deliberately excluded the
position of "heads of bureaus" from
appointments that need the consent
(confirmation) of the Commission on
Appointments.
CONCEPTION- BAUTISTA v SALONGA
FACTS: - August 27, 1987: President Cory
Aquino appointed petitioner Mary Concepcion
Bautista as permanent Chairman of the
Commission on Human Rights (CHR).
- December 22, 1988: Bautista took her oath of
office to Chief Justice Marcelo Fernan and
immediately acted as such.
- January 9, 1989: The Secretary of the
Commission on Appointments (CoA) wrote a
letter to Bautista requesting for her presence
along with several documents at the office of
CoA on January 19. Bautista refused to be
placed under CoA's review.
- Bautista filed a petition with the Supreme
Court.
- While waiting for the progress of the case,
President Aquino appointed Hesiquio R.
Mallillin as "Acting Chairman of the Commission
on Human Rights" but he was not able to sit in
his appointive office because of Bautista's
refusal to surrender her post.
- Malilin invoked EO 163-A which provides that
the tenure of the Chairman and the
Commissioners of the CHR should be at the
pleasure of the President thus stating that
Bautista shall be subsequently removed as
well.
ISSUES:
1. Whether or not Bautista's appointment is
subject to CoA's confirmation.
2. Whether or not Bautista's appointment is an
ad interim appointment.
RULING:
1. No. The position of Chairman of CHR is not
among the positions mentioned in the first
sentence of Sec. 16 Art 7 of the Constitution,
which provides that the appointments which
are to be made with the confirmation of CoA.
Rather, it is within the authority of President,
vested upon her by Constitution (2nd sentence
of Sec. 16 Art 7), that she appoint executive
officials without confirmation of CoA.
The Commission on Appointments, by the
actual exercise of its constitutionally delimited
power to review presidential appointments,
cannot create power to confirm appointments
that the Constitution has reserved to the
President alone.
2. Under the Constitutional design, ad interim
appointments do not apply to appointments
solely for the President to make. Ad interim
appointments, by their very nature under the
1987 Constitution, extend only to
appointments where the review of the
Commission on Appointments is needed. That
is why ad interim appointments are to remain
valid until disapproval by the Commission on
Appointments or until the next adjournment of
Congress; but appointments that are for the
President solely to make, that is, without the
participation of the Commission on
Appointments, cannot be ad interim
appointments
QUINTOS-DELES v COA
FACTS: This is a special civic action for
prohibition and mandamus with injunction
seeking to compel CoA to allow Quintos-Deles
to perform and discharge her duties as HoR
member representing Women's Sector and to
restrain respondents from subjecting her
appointment to the confirmation process.
Quintos-Deles ad three others were appointed
Sectoral Representatives by the President
pursuant to Art. VII Sec 16 p.2 and Art. XVIII
Sec. 7 of the Constitution.
On April 6, 1988, petitioner and three others
were appointed Sectoral Representatives by
the President pursuant to Article VII, Section
16, paragraph 2 and Article XVIII, Section 7 of
the Constitution. In the May 12, 1988 meeting
of the Committee on Appointments ruled
against the position of petitioner Deles.
Petitioner Teresita Quintos-Deles contends that
her appointment as Sectoral Representative for
Women by the President does not require
confirmation by the Commission on
Appointments to qualify her to take her seat in
the House of Representatives.
ISSUE:
WoN the Constitution requires the
appointment of sectoral representatives to the
HoR to be confirmed by the CoA.
RULING:
Yes. The first group of people that may be
appointed by the president, as previously
stated in the Sarmiento v. Mison case, are “the
heads of the executive departments,
ambassadors, other public ministers and
consuls, or officers of the armed forces from
the rank of colonel or naval captain, and other
officers whose appointments are vested in him
in this Constitution.” The seats reserved for
sectoral representatives in paragraph 2, Section
5, Art. VI may be filled by appointment by the
President by express provision of Section 7, Art.
XVIII of the Constitution, it is undubitable that
sectoral representatives to the House of
Representatives are among the “other officers
whose appointments are vested in the
President in this Constitution,” referred to in
the first sentence of Section 16, Art. VII whose
appointments are-subject to confirmation by
the Commission on Appointments (Sarmiento v.
Mison, supra).
Deles' appointment was made pursuant to Art.
VII, Section 16, p.2 which gives the President
”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.” The records
show that Deles’ appointment was made on
April 6, 1988 or while Congress was in recess
(March 26, 1988 to April 17, 1988); hence, the
reference to the said paragraph 2 of Section 16,
Art. VII in the appointment extended to her.
CALDERON v CARALE
FACTS: In 1989, Republic Act No. 6715 was
passed. This law amended PD 442 or the Labor
Code. RA 6715 provides that the Chairman, the
Division Presiding Commissioners and other
Commissioners [of the NLRC] shall all be
appointed by the President, subject to
confirmation by the Commission on
Appointments (COA).
Pursuant to the said law, President Corazon
Aquino appointed Bartolome Carale et al as the
Chairman and the Commissioners respectively
of the NLRC. The appointments were however
not submitted to the CoA for its confirmation.
Peter John Calderon questioned the
appointment saying that without the
confirmation by the CoA, such an appointment
is in violation of RA 6715. Calderon insisted
that RA 6715 should be followed as he
asserted that RA 6715 is not an encroachment
on the appointing power of the executive
contained in Sec. 16, Art. 7, of the Constitution,
as Congress may, by law, require confirmation
by the Commission on Appointments of other
officers appointed by the President in addition
to those mentioned in the first sentence of Sec.
16 of Article 7 of the Constitution.
ISSUE: Whether or not Congress may, by
law, expand the list of public officers required
to be confirmed by the Commission on
Appointment as listed in the Constitution.
RULING: The Supreme Court agreed with the
Solicitor General: confirmation by the CoA is
required exclusively for the heads of executive
departments, ambassadors, public ministers,
consuls, officers of the armed forces from the
rank of colonel or naval captain, and other
officers whose appointments are vested in the
President by the Constitution, such as the
members of the various Constitutional
Commissions (first group). With respect to the
other officers (second to fourth group) whose
appointments are not otherwise provided for
by the law and to those whom the President
may be authorized by law to appoint, no
confirmation by the Commission on
Appointments is required.
“Had it been the intention to allow Congress to
expand the list of officers whose appointments
must be confirmed by the Commission on
Appointments, the Constitution would have
said so by adding the phrase “and other officers
required by law” at the end of the first
sentence, or the phrase, “with the consent of
the Commission on Appointments” at the end
of the second sentence. Evidently, our
Constitution has significantly omitted to
provide for such additions.
This jurisprudence established the following in
interpreting Sec 16, Art 7 of the Constitution
1. Confirmation by the Commission on
Appointments is required only for presidential
appointees mentioned in the first sentence of
Section 16, Article VII, including, those officers
whose appointments are expressly vested by
the Constitution itself in the president (like
sectoral representatives to Congress and
members of the constitutional commissions of
Audit, Civil Service and Election).
2. Confirmation is not required when the
President appoints other government officers
whose appointments are not otherwise
provided for by law or those officers whom he
may be authorized by law to appoint (like the
Chairman and Members of the Commission on
Human Rights). Also, as observed in Mison,
when Congress creates inferior offices but
omits to provide for appointment thereto, or
provides in an unconstitutional manner for
such appointments, the officers are considered
as among those whose appointments are not
otherwise provided for by law.
GENERAL v URRO
FUNA v CHAIRMAN,CSC
Section 1, Article IX-A of the 1987 Constitution
expressly describes all the
Constitutional Commissions as “independent.”
Although their respective functions are
essentially executive in nature, they are not
under the control of the President of the
Philippines in the discharge of such functions.
Each of the Constitutional Commissions
conducts its own proceedings under the
applicable laws and its own rules and in the
exercise of its own discretion.
FACTS: In 2010, then President Gloria Macapagal-
Arroyo appointed Francisco T.Duque III (Duque) as
Chairman of the Civil Service Commission, which was
thereafter confirmed by the Commission on Appointme
nts. Subsequently, President Arroyo issued Executive
Order No. 864 (EO 864). Pursuant to it,
Duque was designated as a member of the Boar
d of Directors or Trustees in an ex officio capacity
of the following government-owned or government-
controlled corporations: (a) Government Service
Insurance System (GSIS); (b) Philippine Health Insurance
Corporation (PHILHEALTH), (c) the Employees
Compensation Commission (ECC), and (d) the Home
Development Mutual Fund (HDMF).Petitioner Dennis
A.B. Funa, in his capacity as taxpayer, concerned
citizenand lawyer, filed the instant petition challenging
the constitutionality of EO 864, as well as Section 14,
Chapter 3, Title I-A, Book V of Executive
Order No. 292 (EO292), otherwise known as The
Administrative Code of 1987 , and the designation
of Duque as a member of the Board of Directors or
Trustees of the GSIS, PHIC, ECC and HDMF for being
clear violations of Section 1 and Section 2, Article IX-A of
the1987 Constitution.
ISSUE: WoN the designation of Duque as member of
the Board of Directors
or Trustees of the GSIS, PHILHEALTH, ECC and H
DMF, in an ex officio capacity, impair the
independence of the CSC and violate the constitutional
prohibition against the holding of dual or multiple offices
for the Members of the Constitutional Commissions
RULING: The court ruled that Arroyo's
Executive Order No. 864, dated February 22,
2010, is unconstitutional for violating sections 1
and 2 of Article IX-A of the 1987 Constitution
which state that "Section 1: [t]he Constitutional
Commissions, which shall be independent, are
the Civil Service Commission, the Commission
on Elections, and the Commission on Audit:"
and "Section 2: [n]o member of a Constitutional
Commission shall, during his tenure, hold any
other office or employment... in any contract
with, or in any franchise or privilege granted by
the Government, any of its subdivisions,
agencies, or instrumentalities, including
government-owned or controlled corporations
or their subsidiaries."
Apart from violating the prohibition against
holding multiple offices, Duque's designation as
member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF impairs the
independence of the CSC. Under Section
17,[42] Article VII of the Constitution, the
President exercises control over all government
offices in the Executive Branch. An office that is
legally not under the control of the President is
not part of the Executive Branch.[43] The Court
has aptly explained in Rufino v. Endriga:[44]
Every government office, entity, or agency
must fall under the Executive, Legislative, or
Judicial branches, or must belong to one of the
independent constitutional bodies, or must be
a quasi-judicial body or local government unit.
Otherwise, such government office, entity, or
agency has no legal and constitutional basis for
its existence.
The CCP does not fall under the Legislative or
Judicial branches of government. The CCP is
also not one of the independent constitutional
bodies. Neither is the CCP a quasi-judicial body
nor a local government unit. Thus, the CCP
must fall under the Executive branch. Under
the Revised Administrative Code of 1987, any
agency "not placed by law or order creating
them under any specific department" falls
"under the Office of the President."
c) Upon Recommendation of Judicial Bar
Council
Article VII, Section 9: Whenever there is a
vacancy in the Office of the Vice-President
during the term for which he was elected, the
President shall nominate a Vice-President from
among the Members of the Senate and the
House of Representatives who shall assume
office upon confirmation by a majority vote of
all the Members of both Houses of the
Congress, voting separately.
Article XI, Section 9: The Ombudsman and his
Deputies shall be appointed by the President
from a list of at least six nominees prepared by
the Judicial and Bar Council, and from a list of
three nominees for every vacancy thereafter.
Such appointments shall require no
confirmation. All vacancies shall be filled within
three months after they occur.
d) Appointment of VP as Cabinet Members
Article VII, Section 3: There shall be a Vice-
President who shall have the same
qualifications and term of office and be elected
with, and in the same manner, as the President.
He may be removed from office in the same
manner as the President.
The Vice-President may be appointed as a
Member of the Cabinet. Such appointment
requires no confirmation.
e) Limitations of Appointing Power
AYTONA v CASTILLO
FACTS: On December 29, 1961, Outgoing
President Carlos Garcia appointed petitioner
Dominador Aytona as ad interim Governor of
the Central Bank. Aytona took the
corresponding oath. On the same day, at noon,
President-elect Diosdado Macapagal assumed
office; and on the next day, he issued
administrative order no. 2 recalling,
withdrawing, and cancelling all ad interim
appointments made by former President
Garcia. There were all-in all, 350 midnight or
last minute appointments made by the former
President Garcia. On January 1, President
Macapagal appointed Andres Castillo as ad
interim Governor of the Central Bank. Aytona
instituted a case (quo warranto) against
Castillo, contending that he was validly
appointed, thus the subsequent appointment
to Castillo by the new President, should be
considered void.
ISSUE:
Whether or not the 350 midnight appointments
of former President Garcia were valid.

RULING:
No. After the proclamation of the election of
President Macapagal, previous President Garcia
administration 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. 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 positions irrespective of
fitness and other conditions, and thereby
deprive the new administration of an
opportunity to make the corresponding
appointments.
JORGE v MAYOR
FACTS: Nicanor Jorge attained the position of
Acting Director in the Bureau of Lands through
regular and successive promotions. He was
appointed by President Carlos Garcia ad interim
Director of Lands in December 13, 1961, he
took his oath of office on the 23rd, his
appointment was transmitted to the CoA in
26th. In May 1962, CoA confirmed the said ad
interim appointment.
President Macapagal issued Administrative
Order No. 2 revoking ad interim appointments
extended and released by former Pres. Garcia
after the joint session of Congress that ended
on December 13 1961.
The Secretary of Agriculture and Natural
Resources of Macapagal administration,
informed Jorge that pursuant to a letter from
the Asst. Executive Sec., served on Jorge that
his appointment was among those revoked by
Admin Order No. 2, and that his position of
Director of Lands was considered vacant.
Jovencio Mayor had been designated by the
President to be Acting Director of Lands. Jorge
instituted a petition for mandamus and quo
warranto, claiming that he is the legally
appointed Director of Lands.
ISSUE: WoN Administrative Order No. 2 of
President Macapagal operated as valid
revocation of Jorge's ad interim appointment.
RULING: No. Jorge's ad interim appointment is
dated December 13, 1961, but there is no
evidence on record that it was made and
released after the joint session of Congress that
ended on the same day. It is a matter of
contemporary history, of which this Court may
take judicial cognizance, that the session ended
late in the night of December 13, 1961, and,
therefore, after regular office hours. In the
absence of competent evidence to the
contrary, it is to be presumed that the
appointment of Jorge was made before the
close of office hours, that being the regular
course of business. The appointment,
therefore, was not included in, nor intended to
be covered by, Administrative Order No. 2, and
the same stands unrevoked. Consequently, it
was validly confirmed by the CoA and
thereafter, the office never became vacant.
YKALINA v ORICIO
SM LAND INC. v BCDA
To increase government prospects,
participation in joint ventures has been
incentivized by granting rights and advantages
to the Original Proponent in the Competitive
Challenge phase of a Swiss Challenge. Faithful
observance of these provisions of law that grant
the aforesaid rights, may it be sourced from a
bilateral contract or executive edict, aids in
improving government reliability. Allowing
government agencies to retract their
commitments to the project proponents will
essentially render inutile the incentives offered
to and have accrued in favor of the private
sector entity. Without securing these rights, the
business community will be wary when it comes
to forging contracts with the government.
FACTS: Pursuant to Republic Act (RA)No. 7227
(Bases Conversion and Development Act of
1992), the BCDA opened for disposition and
development its Bonifacio South Property.
Jumping on the opportunity, SM Land, Inc.
(SMLI) submitted to the BCDA an unsolicited
proposal for the development of the lot
through a Public-Private Joint Venture
Agreement which was accepted by the BCDA.
However, the BCDA clarified that its act should
not be construed to bind the agency to enter
into a joint venture agreement with SMLI but
only constitutes an authorization to conduct
detailed negotiations with SMLI and iron out
the terms and conditions of the agreement.
Afterwards, upon arriving at mutually
acceptable terms and conditions, a Certification
of Successful Negotiations (Certification) was
issued by the BCDA and signed by both parties
with the provisions that the BCDA undertook to
“subject SMLI’s Original Proposal to
Competitive Challenge” and committed itself to
“commence the activities for the solicitation for
comparative proposals.” Then, instead of
proceeding with the Competitive Challenge, the
BCDA corresponded with SMLI stating that it
will welcome any “voluntary and unconditional
proposal” to improve the original offer, with
the assurance that the BCDA will nonetheless
respect any right which may have accrued in
favor of SMLI. In turn, SMLI increased the total
secured payments with an upfront payment.
Without responding to SMLI’s new proposal,
the BCDA sent a memorandum to the Office of
the President (OP) categorically recommending
the termination of the Competitive Challenge.
Alarmed by this development, SMLIurged the
BCDA to proceed with the Competitive
Challenge as agreed upon. However, the BCDA,
via the assailed Supplemental Notice No. 5,
terminated the Competitive Challenge
altogether. In the meantime, the BCDA issued
in favor of SMLI a check without explanation
attached to it but its value corresponds to the
proposal security posted by SMLI, with interest.
SMLI attempted to return the check but to no
avail. The BCDA caused the publication of an
“Invitation to Bid” for the development of the
subject property. This impelled SMLI to file an
Urgent Manifestation with Reiterative Motion
to Resolve SMLI’s Application for Temporary
Restraining Order UST Law Review, Vol. LIX, No.
1, May 2015 (TRO) and Preliminary Injunction.
The Court issued the TRO prayed for by SMLI
and enjoined BCDA from proceeding with the
new selection process for the development of
the property. For its part, SMLI alleged in its
petition that the Certification issued by the
BCDA and signed by the parties constituted a
contract and that under the said contract,
BCDA cannot renege on its obligation to
conduct and complete the Competitive
Challenge. The BCDA relies chiefly on the
reservation clause in the Terms of Reference
(TOR),which mapped out the procedure to be
followed in the Competitive Challenge, which
allegedly authorized the agency to unilaterally
cancel the Competitive Challenge. BCDA add
that the terms and conditions agreed upon are
disadvantageous to the government, and that it
cannot legally be barred by estoppel in
correcting a mistake committed by its agents.
ISSUE: Was the BCDA correct in issuing
Supplemental Notice No. 5, which unilaterally
aborted the Competitive Challenge, and in
subjecting the development of the project to
public bidding?
RULING: No.SMLI has the right to a completed
Competitive Challenge pursuant to the Detailed
Guidelines for Competitive Challenge
Procedure for Public-Private Joint Ventures
(NEDA JV Guidelines) and the Certification
issued by the BCDA. The reservation clause
adverted to by the BCDA cannot, in any way,
prejudice said right. NEDA promulgated the
NEDA Joint Venture Guidelines, which detailed
two (2) modes of selecting a private sector Joint
Venture partner: by competitive selection or
through negotiated agreements. Competitive
selection involves a selection process based on
transparent criteria, which should not constrain
or limit competition, and is open to
participation, by any interested and qualified
private entity. Furthermore, it is well to point
out that after BCDA accepted the unsolicited
proposal of SMLI and after both parties herein
successfully concluded the detailed
negotiations on the terms and conditions of the
project, SMLI acquired the status of an Original
Proponent. An Original Proponent, per the TOR,
pertains to the party whose unsolicited
proposal for the development and privatization
of the subject property through Joint Venture
with BCDA has been accepted by the latter,
subject to certain conditions, and is now being
subjected to a Competitive Challenge. In this
regard, SMLI insists that as an Original
Proponent, it obtained the right to a completed
Competitive Challenge. A scrutiny of the NEDA
JV Guidelines reveals that certain rights are
conferred to an Original Proponent. As
correctly pointed out by SMLI, these rights
include the right to the conduct and completion
of a competitive challenge. UST Law Review,
Vol. LIX, No. 1, May 2015 By their mutual
consent and in signing the Certification, both
parties, in effect, entered into a binding
agreement to subject the unsolicited proposal
to the Competitive Challenge. Evidently, the
Certification partakes of a contract wherein
BCDA committed itself to proceed with the
Third Stage of the process and simultaneously
grants SMLI the right to expect that the BCDA
will fulfill its obligations under the same. The
preconditions to the conduct of the
Competitive Challenge having been met, what
is left, therefore, is to subject the terms agreed
upon to a Competitive Challenge.
QUIMSING v TAJANLANGIT
FACTS: May 16, 1962- Quimsing’s, as well as
other people’s appointments were confirmed-
May 17, 1962- at the session of the Commission
on Appointments, a motion for reconsideration
of all the confirmed appointments was
approved, and the Commission was adjourned
with no future date fixed for its next meeting-
June 11, 1962- President Macapagal designated
Eduardo Tajanglangit as Acting Chief of Police
of Iloilo. Hence this petition for prohibition to
restrain Eduardo Tajanglangit from occupying
the position of Chief of Police to which
petitioner Quimsing had previously been
appointed and duly qualified and the functions
of which he was actually discharging.
ISSUE
WON Quimsing’s appointment was not lawfully
confirmed, because of the motion for
reconsideration of his confirmation, which has,
to the present, remained unacted upon.
RULING:
The appointment of Tajanglangit to the position
of Chief of Police of Iloilo City was null and void,
because said position was not vacant. The
Revised Rules of the Commission on
Appointments provide:“SEC. 21: …Any motion
to reconsider the vote on any appointment may
be laid on the table, and this shall be final
disposition on such a motion." “SEC. 22: Notice
of confirmation or disapproval of an
appointment shall not be sent to the President
of the Philippines before the expiration of the
period for its reconsideration, or while a
motion for reconsideration is pending."
The Commission had not disapproved of
Quimsing’s appointment, it was merely under
reconsideration. It has been established that on
July 19, 1962, Quimsing’s appointment was
delivered to Malacañang. This, as well as the
provisions above, supports the conclusion that
the laying of a motion for reconsideration on
the table does not have the effect of
withholding the effectivity of the confirmation,
nor is it synonymous with disapproval of the
appointment. In fact, it is recognition that the
appointment was confirmed.
ARTURO DE CASTRO v JBC
VELICARIA-GARAFIL v OFFICE OF THE PRES.
FACTS: Prior to the conduct of the May 2010
elections, then President Gloria Macapagal-
Arroyo (President Macapagal-Arroyo) issued
more than 800 appointments to various
positions in several government offices.
The ban on midnight appointments in Section
15, Article VII of the 1987 Constitution reads:
Two months immediately before the next
presidential elections and up to the end of his
term, a President or Acting President shall not
make appointments, except temporary
appointments to executive positions when
continued vacancies therein will prejudice
public... service or endanger public safety.
None of the petitioners claim that their
appointments fall under this exception.
Issuance of EO 2
On 30 June 2010, President Benigno S. Aquino
III (President Aquino) took his oath of office as
President of the Republic of the Philippines. On
30 July 2010, President Aquino issued EO 2
recalling, withdrawing, and revoking
appointments issued by President Macapagal-
Arroyo which... violated the constitutional ban
on midnight appointments.
The only known exceptions to this prohibition
are (1)... temporary appointments in the
executive positions when continued vacancies
will prejudice public service or endanger public
safety and in the light of the recent Supreme
Court decision in the case of De Castro, et al. vs.
JBC and PGMA, G.R. No. 191002, 17 March
2010, (2)... appointments to the Judiciary;
(a) Those made on or after March 11, 2010,
including all appointments bearing dates prior
to March 11, 2010 where the appointee has
accepted, or taken his oath, or assumed public
office on or after March 11, 2010, except
temporary appointments in the executive...
positions when continued vacancies will
prejudice public service or endanger public
safety as may be determined by the appointing
authority.
Effect of the Issuance of EO 2
Atty. Velicaria-Garafil reported for work on 9
August 2010 without any knowledge of her
termination. She was made to return the office-
issued laptop and cellphone, and was told that
her salary ceased as of 7 August 2010. On 12
August 2010, Atty. Velicaria-Garafil was
informed... that her former secretary at the
OSG received a copy of a memorandum on her
behalf. The memorandum, dated 9 August
2010, bore the subject “Implementation of
Executive Order No. 2 dated 30 July 2010” and
was addressed to the OSG’s Director of Finance
and Management Service.
Atty. Venturanza received via facsimile
transmission an undated copy of DOJ Order No.
556. DOJ Order No. 556, issued by DOJ
Secretary Leila M. De Lima (Sec. De Lima),
designated Senior Deputy State Prosecutor
Richard Anthony D. Fadullon (Pros. Fadullon) as
OIC of the Office of the City Prosecutor in
Quezon City. In a letter to Sec. De Lima dated
15 September 2010, Atty. Venturanza asked for
clarification of his status, duties, and functions
since DOJ Order No. 556 did not address the
same.
G.R. No. 209138
The OP withheld the salaries of Villanueva and
Rosquita on the basis of EO 2. On 3 August
2010, Villanueva and Rosquita sought to
intervene in G.R. No. 192991.[
Atty. Tamondong was removed from the SBMA
Board of Directors on 30 July 2010.
Rulings of the CA
Even though the same issues were raised in the
different petitions, the CA promulgated
separate Decisions for the petitions. The CA
consistently ruled that EO 2 is constitutional
In the cases of Attys. Velicaria-Garafil and
Venturanza, the CA stated that the OP should
consider the circumstances of their
appointments. In the cases of Villanueva,
Rosquita, and Atty. Tamondong, the CA
explicitly stated that the revocation of their
appointments... was proper because they were
midnight appointees.
Issues:
We resolve the following issues in these
petitions: (1) whether petitioners’
appointments violate Section 15, Article VII of
the 1987 Constitution, and (2) whether EO 2 is
constitutional.
Ruling:
The petitions have no merit. All of petitioners’
appointments are midnight appointments and
are void for violation of Section 15, Article VII of
the 1987 Constitution. EO 2 is constitutional.
Midnight Appointments
Constitutionality of EO 2
Based on prevailing jurisprudence,
appointment to a government post is a process
that takes several steps to complete. Any valid
appointment, including one made under the
exception provided in Section 15, Article VII of
the 1987 Constitution, must consist of the
President... signing an appointee’s appointment
paper to a vacant office, the official transmittal
of the appointment paper (preferably through
the MRO), receipt of the appointment paper by
the appointee, and acceptance of the
appointment by the appointee evidenced by his
or her oath of... office or his or her assumption
to office.
In its narrow sense, an appointment is not a
process, but is only an “executive act that the
President unequivocally exercises pursuant to
his discretion.”
In short, the dissent allows an appointment to
take effect during the ban, as long as the
President signed and transmitted the
appointment before the... ban, even if the
appointee never received the appointment
paper before the ban and accepted the
appointment only during the ban.
The dissent’s view will lead to glaring
absurdities. Allowing the dissent’s proposal that
an appointment is complete merely upon the
signing of an appointment paper and its
transmittal, excluding the appointee’s
acceptance from the appointment process, will
lead to the absurdity... that, in case of non-
acceptance, the position is considered occupied
and nobody else may be appointed to it.
Moreover, an incumbent public official,
appointed to another public office by the
President, will automatically be deemed to
occupy the new public office and to have...
automatically resigned from his first office upon
transmittal of his appointment paper, even if
he refuses to accept the new appointment. This
will result in chaos in public service
Even worse, a President who is unhappy with
an incumbent public official can simply appoint
him to another public office, effectively
removing him from his first office without due
process. The mere transmittal of his
appointment paper will remove the public
official from office... without due process and
even without cause, in violation of the
Constitution.
The dissent’s assertion that appointment
should be viewed in its narrow sense (and is not
a process) only during the prohibited period is
selective and time-based, and ignores well-
settled jurisprudence. For purposes of
complying with the time limit imposed... by the
appointment ban, the dissent’s position cuts
short the appointment process to the signing of
the appointment paper and its transmittal,
excluding the receipt of the appointment paper
and acceptance of the appointment by the
appointee.
The concurrence of all steps in the appointment
process is... admittedly required for
appointments outside the appointment ban.
There is no justification whatsoever to remove
acceptance as a requirement in the
appointment process for appointments just
before the start of the appointment ban, or
during the appointment ban in appointments...
falling within the exception. The existence of
the appointment ban makes no difference in
the power of the President to appoint; it is still
the same power to appoint. In fact, considering
the purpose of the appointment ban, the
concurrence of all steps in the appointment...
process must be strictly applied on
appointments made just before or during the
appointment ban.
Thus, an acceptance is still necessary in order
for the appointee to validly assume his post and
discharge the functions of his new office, and
thus make the appointment effective.
There can never be an instance where the
appointment of an incumbent will...
automatically result in his resignation from his
present post and his subsequent assumption of
his new position; or where the President can
simply remove an incumbent from his current
office by appointing him to another one. I
stress that acceptance through oath or any
positive... act is still indispensable before any
assumption of office may occur.[46]
Appointing Authority
Appointment involves an exercise of discretion
of whom to appoint; it is not a ministerial act of
issuing appointment papers to the appointee.
In other words, the choice of the appointee is a
fundamental component... of the appointing
power.
Hence, when Congress clothes the President
with the power to appoint an officer, it
(Congress) cannot at the same time limit the
choice of the President to only one candidate.
Once the power of appointment is conferred on
the President, such conferment necessarily
carries the... discretion of whom to appoint.
MRO - Malacañang Records Office
Transmittal
It is not enough that the President signs the
appointment paper. There should be evidence
that the President intended the appointment
paper to be issued. It could happen that an
appointment paper may be dated and signed
by the President months before the
appointment ban, but... never left his locked
drawer for the entirety of his term. Release of
the appointment paper through the MRO is an
unequivocal act that signifies the President’s
intent of its issuance.
The MRO’s exercise of its mandate does not
prohibit the President or the Executive
Secretary from giving the appointment paper
directly to the appointee. However, a problem
may arise if an appointment paper is not
coursed through the MRO and the appointment
paper is lost or the... appointment is
questioned. T
The possession of the original appointment
paper is not indispensable to authorize an
appointee to assume office. If it were
indispensable, then a loss of the original
appointment paper, which could be brought
about by negligence, accident, fraud, fire or
theft, corresponds to a... loss of the office.[56]
However, in case of loss of the original
appointment paper, the appointment must be
evidenced by a certified true copy issued by the
proper office, in this case the MRO.
Vacant Position
An appointment can be made only to a vacant
office. An appointment cannot be made to an
occupied office. The incumbent must first be
legally removed, or his appointment validly
terminated, before one could be validly
installed to succeed him.[57]
EO 2 remained faithful to the intent of Section
15, Article VII of... the 1987 Constitution: the
outgoing President is prevented from
continuing to rule the country indirectly after
the end of his term.
Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an
appointment. Assuming office and taking the
oath amount to acceptance of the
appointment.[60] An oath of office is a
qualifying requirement for a public office, a
prerequisite to the full investiture of the...
office.[61]
Excluding the act of acceptance from the
appointment process leads us to the very evil
which we seek to avoid (i.e., antedating of
appointments). Excluding the act of acceptance
will only provide more occasions to honor the
Constitutional provision in the breach. The
inclusion... of acceptance by the appointee as
an integral part of the entire appointment
process prevents the abuse of the Presidential
power to appoint. It is relatively easy to
antedate appointment papers and make it
appear that they were issued prior to the
appointment ban, but it is... more difficult to
simulate the entire appointment process up
until acceptance by the appointee.
Petitioners have failed to show compliance with
all four elements of a valid appointment. They
cannot prove with certainty that their
appointment papers were transmitted before
the appointment ban took effect. On the other
hand, petitioners admit that they took their
oaths of... office during the appointment ban.
Petitioners have failed to raise any valid ground
for the Court to declare EO 2, or any part of it,
unconstitutional. Consequently, EO 2 remains
valid and constitutional.
EO 2- PNOY revokes the midnight ban
appointments of PGMA
WHEREFORE, the petitions in G.R. Nos. 203372,
206290, and 212030 are DENIED, and the
petition in G.R. No. 209138 is DISMISSED. The
appointments of petitioners Atty. Cheloy E.
Velicaria-Garafil (G.R. No. 203372), Atty. Dindo
G. Venturanza (G.R. No.
206290), Irma A. Villanueva, and Francisca B.
Rosquita (G.R. No. 209138), and Atty. Eddie U.
Tamondong (G.R. No. 212030) are declared
VOID. We DECLARE that Executive Order No. 2
dated 30 July 2010 is VALID and
CONSTITUTIONAL.
S
Principles:
The President exercises only one kind of
appointing power. There is no need to
differentiate the exercise of the President’s
appointing power outside, just before, or during
the appointment ban. The Constitution allows
the President to exercise the power of...
appointment during the period not covered by
the appointment ban, and disallows (subject to
an exception) the President from exercising the
power of appointment during the period
covered by the appointment ban.
The following elements should always concur in
the making of a valid (which should be
understood as both complete and effective)
appointment: (1) authority to appoint and
evidence of the exercise of the authority; (2)
transmittal of the appointment paper and...
evidence of the transmittal; (3) a vacant
position at the time of appointment; and (4)
receipt of the appointment paper and
acceptance of the appointment by the
appointee who possesses all the qualifications
and none of the disqualifications. The
concurrence of all... these elements should
always apply, regardless of when the
appointment is made, whether outside, just
before, or during the appointment ban
f) Interim or Recess Appointments
GUEVARA v INOCENTES
FACTS: The petitioner, Onofre Guevara was
extended an ad interim appointment as
Undersecretary of Labor by the former
Executive on November 18, 1965. Took his oath
of office on November 25th same year. The
incumbent Executive issued Memorandum
Circular No. 8 dated January 23, 1966 declaring
that all ad interim appointments made by the
former Executive lapsed with the adjournment
of the special session of Congress at about
midnight of January 22, 1966.
The respondent, Raoul Inocentes was extended
an ad interim appointment for the same
position by the incumbent Executive on
January 23, 1966.
Guevara filed before the court an instant
petition for Quo Warranto seeking to be
declared person legally entitled to the said
Officer of the Undersecretary of Labor under
Art. VII Sec. 10 (4) of the 1935 Constitution.
which states 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 Congress. Since there was no
Commission on Appointments organized during
the special session which commenced on
January 17, 1966, the respondent contended
that the petitioner’s ad interim appointment as
well as other made under similar conditions
must have lapsed when the Congress
adjourned its last special session. But the
petitioner stated that (1) the specific provision
in the Constitution which states that: “until the
next adjournment of Congress” means
adjournment of a regular session of Congress
and not by a special session and (2) only the
Senate adjourned sine die at midnight of
January 22, 1966 and the House of the
Representative merely ‘suspended’ its session
and to be resumed on January 24, 1966 at
10:00 AM. The petitioner therefore concludes
that Congress has been in continuous session
without interruption since January 17.
ISSUE:
Whether the ad interim appointment of Onofre
P. Guevara is valid.
RULING:
Art. VII, Sec. 10, Subsection 4 of the 1935
Constitution: "the President shall have the
power to make appointments during the recess
of the Congress, but such appointment shall be
effective only until disapproval by the
Commission on Appointments or until the next
adjournment of Congress"
The validity of an ad interim appointment shall
be allowed when (a) until disapproval of the
Commission on Appointments and (b)
adjournment of Congress, whether special or
regular session. In this case, the second mode
of termination took effect when the Congress
adjourned sine die at about midnight of January
22, 1966 which made the appointment of
petitioner Guevara ineffective. The contention
that the Commission on Appointments should
be first organized before the second mode can
be made effective is untenable because they
are two different and separate modes of
termination.
Since the termination of ad interim
appointment cannot be separated, the well-
known maxim in statutory construction applies.
Ubi lex non distinguit nec nos distinguire
debemus.
DE RAMA v CA
FACTS: Evelyn Abeja run for reelection but lost
to de Rama. Before she vacated her office, she
extended permanent appointments to 14 new
employees of the municipal government. de
Rama, upon assuming office, recalled said
appointments contending that these were
"midnight appointments" and, therefore,
prohibited under Sec. 15 Art. VII of the
Constitution. SC held that the records reveal
that when de Rama brought the matter
recalling the appointments of the 14 employees
before the Civil Service Commission, the only
reason he cited to justify his actions that these
were "midnight appointments" that are
forbidden under the Constitution. However, the
CSC ruled, and correctly so, that the said
prohibitions applies only to presidential
appointments. In truth and in fact, there is no
law that prohibits local elective officials from
making appointments during the last days of his
or her tenure.
Issue: Whether or not the appointments made
by the outgoing Mayor are forbidden under Art.
VII, Sec. 15 of the Constitution
Held: The CSC correctly ruled that the
constitutional prohibition on so-called
“midnight appointments,” specifically those
made within 2 months immediately prior to the
next presidential elections, applies only to the
President or Acting President. There is no law
that prohibits local elective officials from
making appointments during thelast days of his
or her tenure.
MATIBAG v BENIPATAYO
FACTS: Herein petitioner Matibag was
appointed by the COMELEC en banc as “Acting
Director IV” of the EID and was reappointed
twice for the same position in a temporary
capacity. Meanwhile, then PGMA also made
appointments, ad interim, of herein
respondents Benipayo, Borra and Tuason, as
COMELEC Chairman and Commissioners,
respectively. Their appointments were renewed
thrice by PGMA, the last one during the
pendency of the case, all due to the failure of
the Commission of Appointments to act upon
the confirmation of their appointments.
Respondent Benipayo, acting on his capacity as
COMELEC Chairman, issued a memorandum
removing petitioner as Acting Director IV and
reassigning her to the Law Department.
Petitioner requested for reconsideration but
was denied. Thus, petitioner filed the instant
petition questioning the appointment and the
right to remain in office of herein respondents,
claiming that their ad interimappointments
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.
Issue:
(1) Whether the ad interim appointments made
by PGMA were prohibited under the
Constitution
(2) Whether the ad interim appointments made
by PGMA were temporary in character
Ruling: NO.
(1) While the Constitution mandates that the
COMELEC “shall be independent”, this
provision should be harmonized with the
President’s power to extend ad
interimappointments. 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
President’s power to make ad
interimappointments. 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. 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.
Evidently, the exercise by the President in the
instant case of her constitutional power to
make ad interim appointments 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 interimappointment 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.
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.
(2) 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 beeffective only
until disapproval by the Commission on
Appointments or until the next adjournment of
the Congress.”
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.
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. A
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.
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. 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.
FETALINO v COMELEC
FACTS: President Fidel V. Ramos extended an
interim appointment to petitioners Evalyn
Fetalino (Fetalino) and Amado Calderon
(Calderon) as Comelec Commissioners, each for
a term of seven (7) years. Congress, however,
adjourned before the Commission on
Appointments (CA) could act on their
appointments. The constitutional ban on
presidential appointments later took effect and
Fetalino and Calderon were no longer re-
appointed. Thus, Fetalino and Calderon merely
served as Comelec Commissioners for more
than four months.
Subsequently, Fetalino and Calderon applied
for their retirement benefits and monthly
pension with the Comelec, pursuant to R.A. No.
1568. The Comelec initially approved the claims
pursuant to its resolution. However, in its
 subsequent resolution, the Comelec, on the
basis of its Law Departments study, completely
disapproved the Fetalino and Calderons claim,
stating that one whose ad interim appointment
expires cannot be said to have completed his
term of office so as to fall under the provisions
of Section 1 of RA 1568 that would entitle him
to a lump sum benefit.
of five years salary. Petitioner-intervenor
Manuel A. Barcelona, Jr. (Barcelona) later
joined the petitioners in questioning the
assailed subsequent resolution.
ISSUES:
1. WoN an ad interim appointment qualifies as
retirement under the law and entitles them to
the full five-year lump sum gratuity;
2. WoN the resolution that initially granted the
five-year lump sum gratuity is already final and
executory;
3. WoN Fetalino and Calderon acquired a vested
right over the full retirement benefits provided
by RA No. 1568.
HELD: The petition lacks merit.
First Issue: Fetalino, Calderon and Barcelona
are not entitled to the lump sum gratuity under
Section 1 of R.A. No. 1568, as amended.
The Court emphasized that the right to
retirement benefits accrues only when two
conditions are met: first, when the conditions
imposed by the applicable law in this case, R.A.
No. 1568 are fulfilled; and second, when an
actual retirement takes place. The Court has
repeatedly emphasized that retirement entails
compliance with certain age and service
requirements specified by law and
jurisprudence, and takes effect by operation of
law.
Section 1 of R.A. No. 1568 allows the grant of
retirement benefits to the Chairman or any
Member of the Comelec who has retired from
the service after having completed his term of
office. Fetalino, Calderon and Barcelona
obviously did not retire under R.A. No. 1568, as
amended, since they never completed the full
seven-year term of office. While the Court
characterized an ad interim appointment
in Matibag v. Benipayo as a permanent
appointment that takes effect immediately and
can no longer be withdrawn by the President
once the appointee has qualified into office,
the Court have also positively ruled in that case
that an ad interim appointment that has lapsed
by inaction of the Commission on
Appointments does not constitute a term of
office.
Second Issue: The Comelec did not violate the
rule on finality of judgments.
Section 13, Rule 18 of the Comelec Rules of
Procedure reads: In ordinary actions, special
proceedings, provisional remedies and special
reliefs a decision or resolution of the
Commission en banc shall become final and
executory after thirty (30) days from its
promulgation.
A simple reading of this provision shows that it
only applies to ordinary actions, special
proceedings, provisional remedies and special
reliefs. Thus, it is clear that the proceedings
that precipitated the issuance of the assailed
resolution do not fall within the coverage of the
actions and proceedings under Section 13, Rule
18 of the Comelec Rules of Procedure. Thus,
the Comelec did not violate its own rule on
finality of judgments.
Third Issue: No vested rights over retirement
benefits.
Retirement benefits granted to Fetalino,
Calderon and Barcelona under Section 1 of R.A.
No. 1568 are purely gratuitous in nature; thus,
they have no vested right over these benefits.
Retirement benefits as provided under R.A. No.
1568 must be distinguished from a pension
which is a form of deferred compensation for
services performed; in a pension, employee
participation is mandatory, thus, employees
acquire contractual or vested rights over the
pension as part of their compensation.
Petition is DENIED.
g) Temporary Designations
 Adm Code of 1987, Sec 17: Power to
Issue Temporary Designation. - (1) The
President may temporarily designate an
officer already in the government service or
any other competent person to perform the
functions of an office in the executive
branch, appointment to which is vested in
him by law, when: (a) the officer regularly
appointed to the office is unable to
perform his duties by reason of illness,
absence or any other cause; or (b) there
 exists a vacancy; (2) The person designated MARTIAL LAW & SUSPENSION OF THE
shall receive the compensation attached to PRIVILEGE OF WRIT
the position, unless he is already in the FORTUN v ARROYO
government service in which case he shall LAGMAN v MEDIALDEA
receive only such additional compensation PADILLA v CONGRESS OF THE PH
as, with his existing salary, shall not exceed MILITARY POWERS
the salary authorized by law for the AMPATUAN v PUNO
position filled. The compensation hereby SANLAKAS v REYES
authorized shall be paid out of the funds IBP v ZAMORA
appropriated for the office or agency KULAYAN v TAN
concerned. (3) In no case shall a temporary Article VII, Section 18:
designation exceed one (1) year. Article II, Section 13:
Article 8, Sec. 1 (2):
ARTURO DE CASTRO v JBC EXERCISE OF EMERGENCY POWERS OF THE
Dissenting Opinion of J. Carpio PRES
CONTRACTING AND GUARANTEEING FOREIGN
h) Limitations on Appointing Power of Acting LOANS
Pres. Article VII, Sec. 20-21:
POWER OVER FOREIGN AFFAIRS
Article 7, Section 14-15: Appointments Article VII, Sec. 21:
extended by an Acting President shall remain PIMENTEL, Jr. v OFFICE OF THE EXEC. SEC.
effective, unless revoked by the elected
President, within ninety days from his
assumption or reassumption of office.

Section 15. Two months immediately before

the next presidential elections and up to the
end of his term, a President or Acting President
shall not make appointments, except
temporary appointments to executive positions
when continued vacancies therein will
prejudice public service or endanger public
safety.

PARDONING POWER
Article VII, Section 19:
Article IX C, Section 5:
 PARDON v PROBATION
 PARDON v PAROLE
TORRES Y SUMOLONG v GONZALES
In Re:TORRES v Bureau Of Corrections
 PARDON v AMNESTY
BARRIOQUINTO v FERNANDEZ
VERA v PEOPLE
 EFFECT OF PARDON
MONSANTO v FACTORAN
RISOS VIDAL v COMELEC
MAGDALO PARA SA PAGBABAGO v COMELEC
 Who may avail amnesty?
MACAGA-AN v PEOPLE
 Annex
DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to
deny a reconsideration of the assailed Decision.
The various motions for reconsideration raise
hollering substantial arguments and
legitimately nagging questions which the Court
must meet head on.
If this Court is to deserve or preserve its
revered place not just in the hierarchy but also
in history, passion for reason demands the
issuance of an extended and extensive
resolution that confronts the ramifications and
repercussions of its assailed Decision. Only then
can it offer an illumination that any self-
respecting student of the law clamors and any
adherent of the law deserves. Otherwise, it
takes the risk of reeking of an objectionable air
of supreme judicial arrogance.
It is thus imperative to settle the following
issues and concerns:
Whether the incumbent President is
constitutionally proscribed from appointing
the successor of Chief Justice Reynato S. Puno
upon his retirement on May 17, 2010 until the
ban ends at 12:00 noon of June 30, 2010
1. In interpreting the subject
constitutional provisions, the
Decision disregarded established canons
of statutory construction. Without
explaining the inapplicability of each of
the relevant rules, the Decision
immediately placed premium on the
arrangement and ordering of provisions,
one of the weakest tools of
construction, to arrive at its conclusion.
2. In reversing Valenzuela, the Decision
held that the Valenzuela dictum did not
firmly rest on ConCom deliberations, yet
it did not offer to cite a material
ConCom deliberation. It instead opted
to rely on the memory of Justice Florenz
Regalado which incidentally mentioned
only the "Court of Appeals." The
Decision’s conclusion must rest on the
strength of its own favorable Concom
deliberation, none of which to date has
been cited.
3. Instead of choosing which
constitutional provision carves out an
exception from the other provision, the
most legally feasible interpretation (in
the limited cases of temporary physical
or legal impossibility of compliance, as
expounded in my Dissenting Opinion) is
to consider the appointments ban or
other substantial obstacle as a
temporary impossibility which excuses
or releases the constitutional obligation
of the Office of the President for the
duration of the ban or obstacle.
In view of the temporary nature of the
circumstance causing the impossibility of
performance, the outgoing President is
released from non-fulfillment of the obligation
to appoint, and the duty devolves upon the
new President. The delay in the fulfillment of
the obligation becomes excusable, since the
law cannot exact compliance with what is
impossible. The 90-day period within which to
appoint a member of the Court is thus
suspended and the period could only start or
resume to run when the temporary obstacle
disappears (i.e., after the period of the
appointments ban; when there is already a
quorum in the JBC; or when there is already at
least three applicants).
Whether the Judicial and Bar Council is obliged
to submit to the President the shortlist of
nominees for the position of Chief Justice (or
Justice of this Court) on or before the
occurrence of the vacancy.
1. The ruling in the Decision that
obligates the JBC to submit the shortlist
to the President on or before the
occurrence of the vacancy in the
Court runs counter to the Concom
deliberations which explain that the 90-
day period is allotted for both the
nomination by the JBC and the
appointment by the President. In the
 move to increase the period to 90 days, CONCHITA CARPIO MORALES
Commissioner Romulo stated that "[t]he Associate Justice
sense of the Committee is that 60 days
is awfully short and that the [Judicial
and Bar] Council, as well as the
President, may have difficulties with
that."

2. To require the JBC to submit to the

President a shortlist of nominees on or
before the occurrence of vacancy in the
Court leads to preposterous results. It
bears reiterating that the requirement is
absurd when,inter alia, the vacancy is
occasioned by the death of a member of
the Court, in which case the JBC could
never anticipate the death of a Justice,
and could never submit a list to the
President on or before the occurrence
of vacancy.

3. The express allowance in the

Constitution of a 90-day period of
vacancy in the membership of the
Courtrebuts any public policy
argument on avoiding a vacuum of even
a single day without a duly appointed
Chief Justice. Moreover, as pointed out
in my Dissenting Opinion, the practice of
having an acting Chief Justice in the
interregnum is provided for by law,
confirmed by tradition, and settled by
jurisprudence to be an internal matter.

The Resolution of the majority, in denying the

present Motions for Reconsideration, failed to
rebut the foregoing crucial matters.

I, therefore, maintain my dissent and vote to

GRANT the Motions for Reconsideration of the
Decision of March 17, 2010 insofar as it holds
that the incumbent President is not
constitutionally proscribed from appointing the
successor of Chief Justice Reynato S. Puno upon
his retirement on May 17, 2010 until the ban
ends at 12:00 noon of June 30, 2010 and that
the Judicial and Bar Council is obliged to submit
to the President the shortlist of nominees for
the position of Chief Justice on or before May
17, 2010.