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Ople V. Torres
EN BANC
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.
SEC. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall
submit regular reports to the Office of the President, through the IACC, on
the status of implementation of this undertaking.
SEC. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner
filed the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as members
of the Inter-Agency Coordinating Committee, are charged with the
implementation of A.O. No. 308. On April 8, 1997, we issued a temporary
restraining order enjoining its implementation.
Petitioner contends:
"A.
THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O.
NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B.
THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.
C.
THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION."[2]
Respondents counter-argue:
A.
THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B.
A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON
THE LEGISLATIVE POWERS OF CONGRESS;
C.
THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS
OF THE CONCERNED AGENCIES;
D.
A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN
PRIVACY.[3]
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold
issues relating to the standing to sue of the petitioner and the justiciability
of the case at bar. More specifically, respondents aver that petitioner has
no legal interest to uphold and that the implementing rules of A.O. No. 308
have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople
is a distinguished member of our Senate. As a Senator, petitioner is
possessed of the requisite standing to bring suit raising the issue that the
issuance of A.O. No. 308 is a usurpation of legislative power. [4] As taxpayer
and member of the Government Service Insurance System (GSIS), petitioner
can also impugn the legality of the misalignment of public funds and the
misuse of GSIS funds to implement A.O. No. 308. [5]
The ripeness for adjudication of the petition at bar is not affected by the
fact that the implementing rules of A.O. No. 308 have yet to be
promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as
infirmed on its face. His action is not premature for the rules yet to be
promulgated cannot cure its fatal defects. Moreover, the respondents
themselves have started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997, respondent Social
Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card. [6] Respondent Executive
Secretary Torres has publicly announced that representatives from the GSIS
and the SSS have completed the guidelines for the national identification
system.[7] All signals from the respondents show their unswerving will to
implement A.O. No. 308 and we need not wait for the formality of the rules
to pass judgment on its constitutionality. In this light, the dissenters
privacy when it ruled that the right has a constitutional foundation. It held
that there is a right of privacy which can be found within the penumbras of
the First, Third, Fourth, Fifth and Ninth Amendments, [31] viz:
"Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and substance x
x x. Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers `in
any house' in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the `right of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.' The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment. The
Ninth Amendment provides: `The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling
that there is a constitutional right to privacy. Speaking thru Mr.
Justice, later Chief Justice, Enrique Fernando, we held:
"xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons;
rightfully it stressed "a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees." It has wider
implications though. The constitutional right to privacy has come into its
own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included
the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control
of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector-protection, in other words, of the dignity and integrity of the individual--has
x.
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
x
x.
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself."
EN BANC
The Case
Before us is an original Petition for Prohibition with prayer for the
issuance of a writ of preliminary injunction and a temporary restraining
order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J.
Angelina G. Matibag (Petitioner for brevity) questions the constitutionality
of the appointment and the right to hold office of the following: (1) Alfredo
L. Benipayo (Benipayo for brevity) as Chairman of the Commission on
Elections (COMELEC for brevity); and (2) Resurreccion Z. Borra (Borra for
brevity) and Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the appointment of
Velma J. Cinco[1] (Cinco for brevity) as Director IV of the COMELECs
Education and Information Department (EID for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as
Acting Director IV of the EID. On February 15, 2000, then Chairperson
Harriet O. Demetriou renewed the appointment of petitioner as Director IV
of EID in a Temporary capacity. On February 15, 2001, Commissioner
Rufino S.B. Javier renewed again the appointment of petitioner to the same
position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad
interim, Benipayo as COMELEC Chairman, [3] and Borra[4] and Tuason[5] as
COMELEC Commissioners, each for a term of seven years and all expiring on
February 2, 2008. Benipayo took his oath of office and assumed the
position of COMELEC Chairman. Borra and Tuason likewise took their oaths
of office and assumed their positions as COMELEC Commissioners. The
Office of the President submitted to the Commission on Appointments on
May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason
for confirmation.[6]However, the Commission on Appointments did not act on
said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments
of Benipayo, Borra and Tuason to the same positions and for the same term
of seven years, expiring on February 2, 2008. [7] They took their oaths of
office for a second time. The Office of the President transmitted on June 5,
2001 their appointments to the Commission on Appointments for
confirmation.[8]
Congress adjourned before the Commission on Appointments could act
on their appointments. Thus, on June 8, 2001, President Macapagal Arroyo
renewed again the ad interim appointments of Benipayo, Borra and Tuason
Here the petitioner has complied with all the requisite technicalities.
Moreover, public interest requires the resolution of the constitutional issue
raised by petitioner.
[24]
any cause. In the words of petitioner, a Sword of Damocles hangs over the
head of every appointee whose confirmation is pending with the
Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes
effect immediately and can no longer be withdrawn by the President once
the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its
permanent
character. The
Constitution
itself
makes
an ad
interim appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next
adjournment of Congress. The second paragraph of Section 16, Article VII of
the Constitution provides as follows:
The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress. (Emphasis
supplied)
Thus, the ad interim appointment remains effective until such disapproval
or next adjournment, signifying that it can no longer be withdrawn or
revoked by the President. The fear that the President can withdraw or
revoke at any time and for any reason an ad interim appointment is utterly
without basis.
More than half a century ago, this Court had already ruled that an ad
interim appointment is permanent in character. In Summers vs. Ozaeta,
[25]
decided on October 25, 1948, we held that:
x x x an ad interim appointment is one made in pursuance of paragraph
(4), Section 10, Article VII of the Constitution, which provides that the
President shall have the power to make appointments during the recess of
the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress. It is an appointment permanent in
nature, and the circumstance that it is subject to confirmation by
the Commission on Appointments does not alter its permanent
character. An ad interim appointment is disapproved certainly for a reason
other than that its provisional period has expired. Said appointment is of
course distinguishable from an acting appointment which is merely
temporary, good until another permanent appointment is
issued. (Emphasis supplied)
FR. BERNAS: That is correct, but we are trying to look for a formula. I
wonder if the Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by
Commissioner Aquino and after conferring with the Committee,
Commissioner Aquino and I propose the following amendment as the last
paragraph of Section 16, the wordings of which are in the 1935
Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE
VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON
APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of
Commissioners Aquino and Bengzon, adding a paragraph to the last
paragraph of Section 16? (Silence) The Chair hears none; the amendment is
approved.[37] (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad
interim appointing power of the President was for the purpose of avoiding
interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three
constitutional commissions. In his concurring opinion in Guevara vs.
Inocentes,[38] decided under the 1935 Constitution, Justice Roberto
Concepcion, Jr. explained the rationale behind ad interimappointments in
this manner:
Now, why is the lifetime of ad interim appointments so limited? Because, if
they expired before the session of Congress, the evil sought to be
avoided interruption in the discharge of essential functions may
take place. Because the same evil would result if the appointments ceased
to be effective during the session of Congress and before its
adjournment. Upon the other hand, once Congress has adjourned, the evil
aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments. (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article
VII of the Constitution barely avoided the interruption of essential
government services in the May 2001 national elections. Following the
As respondent does not have the rank appropriate for the position of Chief
Public Attorney, her appointment to that position cannot be considered
permanent, and she can claim no security of tenure in respect of that
position. As held in Achacoso v. Macaraig:
It is settled that a permanent appointment can be issued only to a person
who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed. Achacoso did
not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing
authority and at a moments notice, conformably to established
jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of
it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place, or as an exception to the rule,
may be appointed to it merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to him cannot be regarded
as permanent even if it may be so designated x x x.
Having been appointed merely in a temporary or acting capacity, and not
possessed of the necessary qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her reassignment was contrary
to the Civil Service Law. This time, the vigorous argument of petitioner that
a temporary or acting appointment can be withdrawn or revoked at the
pleasure of the appointing power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election
period, as a prohibited act under Section 261 (h) of the Omnibus Election
Code, which provides as follows:
Section 261. Prohibited Acts. The following shall be guilty of an
election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public
official who makes or causes any transfer or detail whatever of any
officer or employee in the civil service including public school
teachers, within the election period except upon prior approval of the
Commission.
The proviso in COMELEC Resolution No. 3300, requiring due notice and
hearing before any transfer or reassignment can be made within thirty days
prior to election day, refers only to COMELEC field personnel and not to
head office personnel like the petitioner. Under the Revised Administrative
Code,[69] the COMELEC Chairman is the sole officer specifically vested with
the power to transfer or reassign COMELEC personnel. The COMELEC
Chairman will logically exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will
mean amending the Revised Administrative Code, an act the COMELEC en
banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of the
COMELEC as a collegial body. Interpreting Resolution No. 3300 to require
such concurrence will render the resolution meaningless since the
COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300
should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval
from the COMELEC en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly authorized by law to
transfer or reassign COMELEC personnel. The person holding that office, in
a de jurecapacity, is Benipayo. The COMELEC en banc, in COMELEC
Resolution No. 3300, approved the transfer or reassignment of COMELEC
personnel during the election period. Thus, Benipayos order reassigning
petitioner from the EID to the Law Department does not violate Section 261
(h) of the Omnibus Election Code. For the same reason, Benipayos order
designating Cinco Officer-in-Charge of the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman,
Officer-in-Charge of the Finance Services Department of the Commission on
Elections, did not act in excess of jurisdiction in paying the salaries and
other emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against
petitioner.
SO ORDERED.