G.R. No. 125350.

December 3, 2002

HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge, Branch 28), ULRIC R. CAETE (Presiding Judge,
Branch 25), AGUSTINE R. VESTIL (Presiding Judge, Branch 56), HON. MTC JUDGES TEMISTOCLES M.
BOHOLST (Presiding Judge, Branch 1), VICENTE C. FANILAG (Judge Designate, Branch 2), and WILFREDO A.
DAGATAN (Presiding Judge, Branch 3), all of Mandaue City, petitioners, vs. COMMISSION ON
AUDIT, respondent.

DECISION

CORONA, J.:

Before us is a petition for certiorari under Rule 64 to annul the decision[1 and resolution[2, dated
September 21, 1995 and May 28, 1996, respectively, of the respondent Commission on Audit (COA)
affirming the notices of the Mandaue City Auditor which diminished the monthly additional allowances
received by the petitioner judges of the Regional Trial Court (RTC) and Municipal Trial Court (MTC)
stationed in Mandaue City.

The undisputed facts are as follows:

In 1986, the RTC and MTC judges of Mandaue City started receiving monthly allowances of P1,260 each
through the yearly appropriation ordinance enacted by the Sangguniang Panlungsod of the said city. In
1991, Mandaue City increased the amount to P1,500 for each judge.

On March 15, 1994, the Department of Budget and Management (DBM) issued the disputed Local
Budget Circular No. 55 (LBC 55) which provided that:

xxx xxx xxx

2.3.2. In the light of the authority granted to the local government units under the Local Government
Code to provide for additional allowances and other benefits to national government officials and
employees assigned in their locality, such additional allowances in the form of honorarium at rates not
exceeding P1,000.00 in provinces and cities and P700.00 in municipalities may be granted subject to
the following conditions:

a) That the grant is not mandatory on the part of the LGUs;

b) That all contractual and statutory obligations of the LGU including the implementation of R.A. 6758
shall have been fully provided in the budget;

c) That the budgetary requirements/limitations under Section 324 and 325 of R.A. 7160 should be
satisfied and/or complied with; and

d) That the LGU has fully implemented the devolution of functions/personnel in accordance with R.A.
7160.3 (italics supplied)

xxx xxx xxx

The said circular likewise provided for its immediate effectivity without need of publication:

5.0 EFFECTIVITY
This Circular shall take effect immediately.

Acting on the DBM directive, the Mandaue City Auditor issued notices of disallowance to herein
petitioners, namely, Honorable RTC Judges Mercedes G. Dadole, Ulric R. Caete, Agustin R. Vestil,
Honorable MTC Judges Temistocles M. Boholst, Vicente C. Fanilag and Wilfredo A. Dagatan, in excess of
the amount authorized by LBC 55. Beginning October, 1994, the additional monthly allowances of the
petitioner judges were reduced to P1,000 each. They were also asked to reimburse the amount they
received in excess of P1,000 from April to September, 1994.

The petitioner judges filed with the Office of the City Auditor a protest against the notices of
disallowance. But the City Auditor treated the protest as a motion for reconsideration and indorsed the
same to the COA Regional Office No. 7. In turn, the COA Regional Office referred the motion to the
head office with a recommendation that the same be denied.

On September 21, 1995, respondent COA rendered a decision denying petitioners motion for
reconsideration. The COA held that:

The issue to be resolved in the instant appeal is whether or not the City Ordinance of Mandaue which
provides a higher rate of allowances to the appellant judges may prevail over that fixed by the DBM
under Local Budget Circular No. 55 dated March 15, 1994.

xxx xxx xxx

Applying the foregoing doctrine, appropriation ordinance of local government units is subject to the
organizational, budgetary and compensation policies of budgetary authorities (COA 5 th Ind., dated
March 17, 1994 re: Province of Antique; COA letter dated May 17, 1994 re: Request of Hon. Renato
Leviste, Cong. 1st Dist. Oriental Mindoro). In this regard, attention is invited to Administrative Order No.
42 issued on March 3, 1993 by the President of the Philippines clarifying the role of DBM in the
compensation and classification of local government positions under RA No. 7160 vis-avis the
provisions of RA No. 6758 in view of the abolition of the JCLGPA. Section 1 of said Administrative Order
provides that:

Section 1. The Department of Budget and Management as the lead administrator of RA No. 6758 shall,
through its Compensation and Position Classification Bureau, continue to have the following
responsibilities in connection with the implementation of the Local Government Code of 1991:

a) Provide guidelines on the classification of local government positions and on

the specific rates of pay therefore;

b) Provide criteria and guidelines for the grant of

all allowances and additional forms of compensation to local government
employees; xxx. (underscoring supplied)

To operationalize the aforecited presidential directive, DBM issued LBC No. 55, dated March 15, 1994,
whose effectivity clause provides that:

xxx xxx xxx

5.0 EFFECTIVITY

This Circular shall take effect immediately.

It is a well-settled rule that implementing rules and regulations promulgated by administrative or
executive officer in accordance with, and as authorized by law, has the force and effect of law or
partake the nature of a statute (Victorias Milling Co., Inc., vs. Social Security Commission, 114 Phil. 555,
cited in Agpalos Statutory Construction, 2nd Ed. P. 16; Justice Cruzs Phil. Political Law, 1984 Ed., p. 103;
Espanol vs. Phil Veterans Administration, 137 SCRA 314; Antique Sawmills Inc. vs. Tayco, 17 SCRA 316).

xxx xxx xxx

There being no statutory basis to grant additional allowance to judges in excess of P1,000.00
chargeable against the local government units where they are stationed, this Commission finds no
substantial grounds or cogent reason to disturb the decision of the City Auditor, Mandaue City,
disallowing in audit the allowances in question. Accordingly, the above-captioned appeal of the MTC
and RTC Judges of Mandaue City, insofar as the same is not covered by Circular Letter No. 91-7, is
hereby dismissed for lack of merit.

xxx xxx xxx4cräläwvirtualibräry

On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for and in behalf of the petitioner
judges, filed a motion for reconsideration of the decision of the COA. In a resolution dated May 28,
1996, the COA denied the motion.

Hence, this petition for certiorari by the petitioner judges, submitting the following questions for
resolution:

HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL BASIS TO PROVIDE ADDITIONAL
ALLOWANCES AND OTHER BENEFITS TO JUDGES STATIONED IN AND ASSIGNED TO THE CITY?

II

CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS LOCAL BUDGET CIRCULAR NO. 55 RENDER
INOPERATIVE THE POWER OF THE LEGISLATIVE BODY OF A CITY BY SETTING A LIMIT TO THE EXTENT OF
THE EXERCISE OF SUCH POWER?

III

HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED LOCAL BUDGET CIRCULAR NO. 55 TO
INCLUDE MEMBERS OF THE JUDICIARY IN FIXING THE CEILING OF ADDITIONAL ALLOWANCES AND
BENEFITS TO BE PROVIDED TO JUDGES STATIONED IN AND ASSIGNED TO MANDAUE CITY BY THE CITY
GOVERNMENT AT P1,000.00 PER MONTH NOTWITHSTANDING THAT THEY HAVE BEEN RECEIVING
ALLOWANCES OF P1,500.00 MONTHLY FOR THE PAST FIVE YEARS?

IV

IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994 ISSUED BY THE DEPARTMENT OF BUDGET
AND MANAGEMENT VALID AND ENFORCEABLE CONSIDERING THAT IT WAS NOT DULY PUBLISHED IN
ACCODANCE WITH LAW?5cräläwvirtualibräry

Petitioner judges argue that LBC 55 is void for infringing on the local autonomy of Mandaue City by
dictating a uniform amount that a local government unit can disburse as additional allowances to
judges stationed therein. They maintain that said circular is not supported by any law and therefore
goes beyond the supervisory powers of the President. They further allege that said circular is void for
lack of publication.

On the other hand, the yearly appropriation ordinance providing for additional allowances to judges is
allowed by Section 458, par. (a)(1)[xi], of RA 7160, otherwise known as the Local Government Code of
1991, which provides that:

Sec. 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government,
and in this connection, shall:

xxx xxx xxx

(xi) When the finances of the city government allow, provide for additional allowances and other
benefits to judges, prosecutors, public elementary and high school teachers, and other national
government officials stationed in or assigned to the city; (italics supplied)

Instead of filing a comment on behalf of respondent COA, the Solicitor General filed a manifestation
supporting the position of the petitioner judges. The Solicitor General argues that (1) DBM only enjoys
the power to review and determine whether the disbursements of funds were made in accordance
with the ordinance passed by a local government unit while (2) the COA has no more than auditorial
visitation powers over local government units pursuant to Section 348 of RA 7160 which provides for
the power to inspect at any time the financial accounts of local government units.

Moreover, the Solicitor General opines that the DBM and the respondent are only authorized under RA
7160 to promulgate a Budget Operations Manual for local government units, to improve and
systematize methods, techniques and procedures employed in budget preparation, authorization,
execution and accountability pursuant to Section 354 of RA 7160. The Solicitor General points out that
LBC 55 was not exercised under any of the aforementioned provisions.

Respondent COA, on the other hand, insists that the constitutional and statutory authority of a city
government to provide allowances to judges stationed therein is not absolute. Congress may set
limitations on the exercise of autonomy. It is for the President, through the DBM, to check whether
these legislative limitations are being followed by the local government units.

One such law imposing a limitation on a local government units autonomy is Section 458, par. (a) (1)
[xi], of RA 7160, which authorizes the disbursement of additional allowances and other benefits to
judges subject to the condition that the finances of the city government should allow the same. Thus,
DBM is merely enforcing the condition of the law when it sets a uniform maximum amount for the
additional allowances that a city government can release to judges stationed therein.

Assuming arguendo that LBC 55 is void, respondent COA maintains that the provisions of the yearly
approved ordinance granting additional allowances to judges are still prohibited by the appropriation
laws passed by Congress every year. COA argues that Mandaue City gets the funds for the said
additional allowances of judges from the Internal Revenue Allotment (IRA). But the General
Appropriations Acts of 1994 and 1995 do not mention the disbursement of additional allowances to
judges as one of the allowable uses of the IRA. Hence, the provisions of said ordinance granting
additional allowances, taken from the IRA, to herein petitioner judges are void for being contrary to
law.

To resolve the instant petition, there are two issues that we must address: (1) whether LBC 55 of the
DBM is void for going beyond the supervisory powers of the President and for not having been
published and (2) whether the yearly appropriation ordinance enacted by the City of Mandaue that
provides for additional allowances to judges contravenes the annual appropriation laws enacted by
Congress.

We rule in favor of the petitioner judges.

On the first issue, we declare LBC 55 to be null and void.

We recognize that, although our Constitution[6 guarantees autonomy to local government units, the
exercise of local autonomy remains subject to the power of control by Congress and the power of
supervision by the President. Section 4 of Article X of the 1987 Philippine Constitution provides that:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. x x x

In Pimentel vs. Aguirre[7], we defined the supervisory power of the President and distinguished it from
the power of control exercised by Congress. Thus:

This provision (Section 4 of Article X of the 1987 Philippine Constitution) has been interpreted to
exclude the power of control. In Mondano v. Silvosa,i[5] the Court contrasted the President's power of
supervision over local government officials with that of his power of control over executive officials of
the national government. It was emphasized that the two terms -- supervision and control -- differed in
meaning and extent. The Court distinguished them as follows:

"x x x In administrative law, supervision means overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may
take such action or step as prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer
ha[s] done in the performance of his duties and to substitute the judgment of the former for that of
the latter."ii[6]

In Taule v. Santos,iii[7] we further stated that the Chief Executive wielded no more authority than that of
checking whether local governments or their officials were performing their duties as provided by the
fundamental law and by statutes. He cannot interfere with local governments, so long as they act
within the scope of their authority. "Supervisory power, when contrasted with control, is the power of
mere oversight over an inferior body; it does not include any restraining authority over such
body,"iv[8] we said.

In a more recent case, Drilon v. Lim,v[9] the difference between control and supervision was further
delineated. Officers in control lay down the rules in the performance or accomplishment of an act. If
these rules are not followed, they may, in their discretion, order the act undone or redone by their
subordinates or even decide to do it themselves. On the other hand, supervision does not cover such
authority. Supervising officials merely see to it that the rules are followed, but they themselves do not
lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not
observed, they may order the work done or redone, but only to conform to such rules. They may not
prescribe their own manner of execution of the act. They have no discretion on this matter except to
see to it that the rules are followed.
Under our present system of government, executive power is vested in the President.vi[10] The
members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to
the power of control of the President, at whose will and behest they can be removed from office; or
their actions and decisions changed, suspended or reversed.vii[11] In contrast, the heads of political
subdivisions are elected by the people. Their sovereign powers emanate from the electorate, to whom
they are directly accountable. By constitutional fiat, they are subject to the Presidents supervision only,
not control, so long as their acts are exercised within the sphere of their legitimate powers. By the
same token, the President may not withhold or alter any authority or power given them by the
Constitution and the law.

Clearly then, the President can only interfere in the affairs and activities of a local government unit if
he or she finds that the latter has acted contrary to law. This is the scope of the Presidents supervisory
powers over local government units. Hence, the President or any of his or her alter egos cannot
interfere in local affairs as long as the concerned local government unit acts within the parameters of
the law and the Constitution. Any directive therefore by the President or any of his or her alter
egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a local government
unit is a patent nullity because it violates the principle of local autonomy and separation of powers of
the executive and legislative departments in governing municipal corporations.

Does LBC 55 go beyond the law it seeks to implement? Yes.

LBC 55 provides that the additional monthly allowances to be given by a local government unit should
not exceed P1,000 in provinces and cities and P700 in municipalities. Section 458, par. (a)(1)(xi), of RA
7160, the law that supposedly serves as the legal basis of LBC 55, allows the grant of additional
allowances to judges when the finances of the city government allow. The said provision does not
authorize setting a definite maximum limit to the additional allowances granted to judges. Thus, we
need not belabor the point that the finances of a city government may allow the grant of additional
allowances higher than P1,000 if the revenues of the said city government exceed its annual
expenditures. Thus, to illustrate, a city government with locally generated annual revenues of P40
million and expenditures of P35 million can afford to grant additional allowances of more than P1,000
each to, say, ten judges inasmuch as the finances of the city can afford it.

Setting a uniform amount for the grant of additional allowances is an inappropriate way of enforcing
the criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM over-stepped its power of
supervision over local government units by imposing a prohibition that did not correspond with the law
it sought to implement. In other words, the prohibitory nature of the circular had no legal basis.

Furthermore, LBC 55 is void on account of its lack of publication, in violation of our ruling in Taada vs.
Tuvera[8] where we held that:

xxx. Administrative rules and regulations must also be published if their purpose is to enforce or
implement existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
an administrative agency and the public, need not be published. Neither is publication required of the
so-called letters of instruction issued by administrative superiors concerning the rules or guidelines to
be followed by their subordinates in the performance of their duties.

Respondent COA claims that publication is not required for LBC 55 inasmuch as it is merely an
interpretative regulation applicable to the personnel of an LGU. We disagree. In De Jesus vs.
Commission on Audit[9] where we dealt with the same issue, this Court declared void, for lack of
publication, a DBM circular that disallowed payment of allowances and other additional compensation
to government officials and employees. In refuting respondent COAs argument that said circular was
merely an internal regulation, we ruled that:

On the need for publication of subject DBM-CCC No. 10, we rule in the affirmative. Following the
doctrine enunciated in Taada v. Tuvera, publication in the Official Gazette or in a newspaper of general
circulation in the Philippines is required since DBM-CCC No. 10 is in the nature of an administrative
circular the purpose of which is to enforce or implement an existing law. Stated differently, to be
effective and enforceable, DBM-CCC No. 10 must go through the requisite publication in the Official
Gazette or in a newspaper of general circulation in the Philippines.

In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which completely
disallows payment of allowances and other additional compensation to government officials and
employees, starting November 1, 1989, is not a mere interpretative or internal regulation. It is
something more than that. And why not, when it tends to deprive government workers of their
allowance and additional compensation sorely needed to keep body and soul together. At the very
least, before the said circular under attack may be permitted to substantially reduce their income, the
government officials and employees concerned should be apprised and alerted by the publication of
subject circular in the Official Gazette or in a newspaper of general circulation in the Philippines to the
end that they be given amplest opportunity to voice out whatever opposition they may have, and to
ventilate their stance on the matter. This approach is more in keeping with democratic precepts and
rudiments of fairness and transparency. (emphasis supplied)

In Philippine International Trading Corporation vs. Commission on Audit[10], we again declared the
same circular as void, for lack of publication, despite the fact that it was re-issued and then submitted
for publication. Emphasizing the importance of publication to the effectivity of a regulation, we therein
held that:

It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its entirety and submitted
for publication in the Official Gazette per letter to the National Printing Office dated March 9, 1999.
Would the subsequent publication thereof cure the defect and retroact to the time that the
above-mentioned items were disallowed in audit?

The answer is in the negative, precisely for the reason that publication is required as a condition
precedent to the effectivity of a law to inform the public of the contents of the law or rules and
regulations before their rights and interests are affected by the same. From the time the COA
disallowed the expenses in audit up to the filing of herein petition the subject circular remained in legal
limbo due to its non-publication. As was stated in Taada v. Tuvera, prior publication of laws before they
become effective cannot be dispensed with, for the reason that it would deny the public knowledge of
the laws that are supposed to govern it.11cräläwvirtualibräry

We now resolve the second issue of whether the yearly appropriation ordinance enacted by Mandaue
City providing for fixed allowances for judges contravenes any law and should therefore be struck
down as null and void.

According to respondent COA, even if LBC 55 were void, the ordinances enacted by Mandaue City
granting additional allowances to the petitioner judges would still (be) bereft of legal basis for want of
a lawful source of funds considering that the IRA cannot be used for such purposes. Respondent COA
showed that Mandaue Citys funds consisted of locally generated revenues and the IRA. From 1989 to
1995, Mandaue Citys yearly expenditures exceeded its locally generated revenues, thus resulting in a
deficit. During all those years, it was the IRA that enabled Mandaue City to incur a surplus. Respondent
avers that Mandaue City used its IRA to pay for said additional allowances and this violated paragraph 2
of the Special Provisions, page 1060, of RA 7845 (The General Appropriations Act of 1995)[12 and
paragraph 3 of the Special Provision, page 1225, of RA 7663 (The General Appropriations Act of
1994)[13 which specifically identified the objects of expenditure of the IRA. Nowhere in said provisions
of the two budgetary laws does it say that the IRA can be used for additional allowances of judges.
Respondent COA thus argues that the provisions in the ordinance providing for such disbursement are
against the law, considering that the grant of the subject allowances is not within the specified use
allowed by the aforesaid yearly appropriations acts.

We disagree.

Respondent COA failed to prove that Mandaue City used the IRA to spend for the additional allowances
of the judges. There was no evidence submitted by COA showing the breakdown of the expenses of the
city government and the funds used for said expenses. All the COA presented were the amounts
expended, the locally generated revenues, the deficit, the surplus and the IRA received each year.
Aside from these items, no data or figures were presented to show that Mandaue City deducted the
subject allowances from the IRA. In other words, just because Mandaue Citys locally generated
revenues were not enough to cover its expenditures, this did not mean that the additional allowances
of petitioner judges were taken from the IRA and not from the citys own revenues.

Moreover, the DBM neither conducted a formal review nor ordered a disapproval of Mandaue Citys
appropriation ordinances, in accordance with the procedure outlined by Sections 326 and 327 of RA
7160 which provide that:

Section 326. Review of Appropriation Ordinances of Provinces, Highly Urbanized Cities, Independent
Component Cities, and Municipalities within the Metropolitan Manila Area. The Department of Budget
and Management shall review ordinances authorizing the annual or supplemental appropriations of
provinces, highly-urbanized cities, independent component cities, and municipalities within the
Metropolitan Manila Area in accordance with the immediately succeeding Section.

Section 327. Review of Appropriation Ordinances of Component Cities and Municipalities.- The
sangguninang panlalawigan shall review the ordinance authorizing annual or supplemental
appropriations of component cities and municipalities in the same manner and within the same period
prescribed for the review of other ordinances.

If within ninety (90) days from receipt of copies of such ordinance, the sangguniang panlalawigan takes
no action thereon, the same shall be deemed to have been reviewed in accordance with law and shall
continue to be in full force and effect. (emphasis supplied)

Within 90 days from receipt of the copies of the appropriation ordinance, the DBM should have taken
positive action. Otherwise, such ordinance was deemed to have been properly reviewed and deemed
to have taken effect. Inasmuch as, in the instant case, the DBM did not follow the appropriate
procedure for reviewing the subject ordinance of Mandaue City and allowed the 90-day period to lapse,
it can no longer question the legality of the provisions in the said ordinance granting additional
allowances to judges stationed in the said city.

WHEREFORE, the petition is hereby GRANTED, and the assailed decision and resolution, dated
September 21, 1995 and May 28, 1996, respectively, of the Commission on Audit are hereby set aside.

G.R. No. 149724 August 19, 2003

DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, represented herein by its Secretary,
HEHERSON T. ALVAREZ, Petitioner,
vs.
DENR REGION 12 EMPLOYEES, represented by BAGUIDALI KARIM, Acting President of COURAGE (DENR
Region 12 Chapter), Respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review assailing the Resolutions dated May 31, 20001 of the Court of Appeals
which dismissed the petition for certiorari in CA-G.R. SP No. 58896, and its Resolution dated August 20,
20012 , which denied the motion for reconsideration.

The facts are as follows:

On November 15, 1999, Regional Executive Director of the Department of Environment and Natural
Resources for Region XII, Israel C. Gaddi, issued a Memorandum3 directing the immediate transfer of
the DENR XII Regional Offices from Cotabato City to Koronadal (formerly Marbel), South Cotabato. The
Memorandum was issued pursuant to DENR Administrative Order No. 99-14, issued by then DENR
Secretary Antonio H. Cerilles, which reads in part:

Subject: Providing for the Redefinition of Functions and Realignment of Administrative Units in the
Regional and Field Offices:

Pursuant to Executive Order No. 192, dated June 10, 1987 and as an interim administrative
arrangement to improve the efficiency and effectiveness of the Department of Environment and
Natural Resources (DENR) in delivering its services pending approval of the government-wide
reorganization by Congress, the following redefinition of functions and realignment of administrative
units in the regional and field offices are hereby promulgated:

Section 1. Realignment of Administrative Units:

The DENR hereby adopts a policy to establish at least one Community Environment and Natural
Resources Office (CENRO) or Administrative Unit per Congressional District except in the Autonomous
Region of Muslim Mindanao (ARMM) and the National Capital Region (NCR). The Regional Executive
Directors (REDs) are hereby authorized to realign/relocate existing CENROs and implement this policy
in accordance with the attached distribution list per region which forms part of this Order. Likewise,
the following realignment and administrative arrangements are hereby adopted:

xxx xxx xxx

1.6. The supervision of the Provinces of South Cotabato and Sarangani shall be transferred from Region
XI to XII.4

Respondents, employees of the DENR Region XII who are members of the employees association,
"COURAGE", represented by their Acting President, Baguindanai A. Karim, filed with the Regional Trial
Court of Cotabato, a petition for nullity of orders with prayer for preliminary injunction.

On December 8, 1999, the trial court issued a temporary restraining order enjoining petitioner from
implementing the assailed Memorandum. The dispositive portion of the Order reads:
WHEREFORE, defendants DENR Secretary Antonio H. Cerilles and Regional Executive Director Israel C.
Gaddi are hereby ordered to cease and desist from doing the act complained of, namely, to stop the
transfer of DENR [Region] 12 offices from Cotabato City to Korandal (Marbel), South Cotabato.

xxx xxx xxx.

SO ORDERED.5

Petitioner filed a Motion for Reconsideration with Motion to Dismiss, raising the following grounds:

I.

The power to transfer the Regional Office of the Department of Environment and Natural Resources
(DENR) is executive in nature.

II.

The decision to transfer the Regional Office is based on Executive Order No. 429, which reorganized
Region XII.

III.

The validity of EO 429 has been affirmed by the Honorable Supreme Court in the Case of Chiongbian vs.
Orbos (1995) 245 SCRA 255.

IV.

Since the power to reorganize the Administrative Regions is Executive in Nature citing Chiongbian, the
Honorable Court has no jurisdiction to entertain this petition.6

On January 14, 2000, the trial court rendered judgment, the dispositive portion of which reads:

CONSEQUENTLY, order is hereby issued ordering the respondents herein to cease and desist from
enforcing their Memorandum Order dated November 15, 1999 relative to the transfer of the DENR
Regional Offices from Region 12 to Region 11 at Koronadal, South Cotabato for being bereft of legal
basis and issued with grave abuse of discretion amounting to lack or excess of jurisdiction on their part,
and they are further ordered to return back the seat of the DENR Regional Offices 12 to Cotabato City.

SO ORDERED.7

Petitioner’s motion for reconsideration was denied in an Order dated April 10, 2000. A petition
for certiorari under Rule 65 was filed before the Court of Appeals, docketed as CA-G.R. SP No. 58896.
The petition was dismissed outright for: (1) failure to submit a written explanation why personal
service was not done on the adverse party; (2) failure to attach affidavit of service; (3) failure to
indicate the material dates when copies of the orders of the lower court were received; (4) failure to
attach certified true copy of the order denying petitioner’s motion for reconsideration; (5) for
improper verification, the same being based on petitioner’s "knowledge and belief," and (6) wrong
remedy of certiorari under Rule 65 to substitute a lost appeal.8

The motion for reconsideration was denied in a resolution dated August 20, 2001.9 Hence, this petition
based on the following assignment of errors:
 I

RULES OF PROCEDURE CAN NOT BE USED TO DEFEAT THE ENDS OF SUBSTANTIAL

JUSTICE

II

THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 WHICH WAS
AFFIRMED IN THE QUESTIONED RESOLUTIONS OF THE COURT OF APPEALS DATED 31
MAY 2000 AND 20 AUGUST 2001 IS PATENTLY ILLEGAL AND SHOULD BE NULLIFIED,
CONSIDERING THAT:

A. RESPONDENTS HAVE NO CAUSE OF ACTION AGAINST PETITIONER AS THEY HAVE

NO RIGHT TO CAUSE THE DENR REGION 12 OFFICE TO REMAIN IN COTABATO CITY.

B. THE STATE DID NOT GIVE ITS CONSENT TO BE SUED.

C. THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 IS CONTRARY TO

THE RULE OF PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL
FUNCTIONS.

D. IN ANY EVENT, THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 IS
CONTRARY TO THE LETTER AND INTENT OF EXECUTIVE ORDER NO. 429 AND
REPUBLIC ACT NO. 6734.

E. THE DETERMINATION OF THE PROPRIETY AND PRACTICALITY OF THE TRANSFER OF

REGIONAL OFFICES IS INHERENTLY EXECUTIVE, AND THEREFORE, NON-JUSTICIABLE.10

In essence, petitioner argues that the trial court erred in enjoining it from causing the transfer of the
DENR XII Regional Offices, considering that it was done pursuant to DENR Administrative Order 99-14.

The issues to be resolved in this petition are: (1) Whether DAO-99-14 and the Memorandum
implementing the same were valid; and (2) Whether the DENR Secretary has the authority to
reorganize the DENR.

Prefatorily, petitioner prays for a liberal application of procedural rules considering the greater interest
of justice.

This Court is fully aware that procedural rules are not to be simply disregarded for these prescribed
procedures ensure an orderly and speedy administration of justice. However, it is equally true that
litigation is not merely a game of technicalities. Time and again, courts have been guided by the
principle that the rules of procedure are not to be applied in a very rigid and technical manner, as rules
of procedure are used only to help secure and not to override substantial justice. 11 Thus, if the
application of the Rules would tend to frustrate rather than promote justice, it is always within the
power of this Court to suspend the rules, or except a particular case from its operation.12

Despite the presence of procedural flaws, we find it necessary to address the issues because of the
demands of public interest, including the need for stability in the public service and the serious
implications this case may cause on the effective administration of the executive department. Although
no appeal was made within the reglementary period to appeal, nevertheless, the departure from the
general rule that the extraordinary writ of certiorari cannot be a substitute for the lost remedy of
appeal is justified because the execution of the assailed decision would amount to an oppressive
exercise of judicial authority.13

Petitioner maintains that the assailed DAO-99-14 and the implementing memorandum were valid and
that the trial court should have taken judicial notice of Republic Act No. 6734, otherwise known as "An
Organic Act for the Autonomous Region in Muslim Mindanao," and its implementing Executive Order
429,14 as the legal bases for the issuance of the assailed DAO-99-14. Moreover, the validity of R.A. No.
6734 and E.O. 429 were upheld in the case of Chiongbian v. Orbos.15 Thus, the respondents cannot, by
means of an injunction, force the DENR XII Regional Offices to remain in Cotabato City, as the exercise
of the authority to transfer the same is executive in nature.

It is apropos to reiterate the elementary doctrine of qualified political agency, thus:

Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases where the
Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the Secretaries of
such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.16

This doctrine is corollary to the control power of the President as provided for under Article VII, Section
17 of the 1987 Constitution, which reads:

Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.

However, as head of the Executive Department, the President cannot be expected to exercise his
control (and supervisory) powers personally all the time. He may delegate some of his powers to the
Cabinet members except when he is required by the Constitution to act in person or the exigencies of
the situation demand that he acts personally.17

In Buklod ng Kawaning EIIB v. Zamora,18 this Court upheld the continuing authority of the President to
carry out the reorganization in any branch or agency of the executive department. Such authority
includes the creation, alteration or abolition of public offices.19 The Chief Executive’s authority to
reorganize the National Government finds basis in Book III, Section 20 of E.O. No. 292, otherwise
known as the Administrative Code of 1987, viz:

Section 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise such
other powers and functions vested in the President which are provided for under the laws and which
are not specifically enumerated above or which are not delegated by the President in accordance with
law.

Further, in Larin v. Executive Secretary,20 this Court had occasion to rule:

This provision speaks of such other powers vested in the President under the law. What law then gives
him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree
No. 1416. These decrees expressly grant the President of the Philippines the continuing authority to
reorganize the national government, which includes the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities
and to standardize salaries and materials. The validity of these two decrees is unquestionable. The
1987 Constitution clearly provides that "all laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent with this Constitution shall remain
operative until amended, repealed or revoked." So far, there is yet no law amending or repealing said
decrees.

Applying the doctrine of qualified political agency, the power of the President to reorganize the
National Government may validly be delegated to his cabinet members exercising control over a
particular executive department. Thus, in DOTC Secretary v. Mabalot,21 we held that the President –
through his duly constituted political agent and alter ego, the DOTC Secretary – may legally and validly
decree the reorganization of the Department, particularly the establishment of DOTC-CAR as the LTFRB
Regional Office at the Cordillera Administrative Region, with the concomitant transfer and
performance of public functions and responsibilities appurtenant to a regional office of the LTFRB.

Similarly, in the case at bar, the DENR Secretary can validly reorganize the DENR by ordering the
transfer of the DENR XII Regional Offices from Cotabato City to Koronadal, South Cotabato. The
exercise of this authority by the DENR Secretary, as an alter ego, is presumed to be the acts of the
President for the latter had not expressly repudiated the same.

The trial court should have taken judicial notice of R.A. No. 6734, as implemented by E.O. No. 429, as
legal basis of the President’s power to reorganize the executive department, specifically those
administrative regions which did not vote for their inclusion in the ARMM. It is axiomatic that a court
has the mandate to apply relevant statutes and jurisprudence in determining whether the allegations
in a complaint establish a cause of action. While it focuses on the complaint, a court clearly cannot
disregard decisions material to the proper appreciation of the questions before it. 22 In resolving the
motion to dismiss, the trial court should have taken cognizance of the official acts of the legislative,
executive, and judicial departments because they are proper subjects of mandatory judicial notice as
provided by Section 1 of Rule 129 of the Rules of Court, to wit:

A court shall take judicial notice, without the introduction of evidence, of the existence and territorial
extent of states, their political history, forms of government and symbols of nationality, the law of
nations, the admiralty and maritime courts of the world and their seals, the political constitution and
history of the Philippines, the official acts of the legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and the geographical divisions. (Emphasis
supplied)

Article XIX, Section 13 of R.A. No. 6734 provides:

SECTION 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when
approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of
Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one
hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities
voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao.
The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region
shall remain in the existing administrative regions: Provided, however, That the President may, by
administrative determination, merge the existing regions.

Pursuant to the authority granted by the aforequoted provision, then President Corazon C. Aquino
issued on October 12, 1990 E.O. 429, "Providing for the Reorganization of the Administrative Regions in
Mindanao." Section 4 thereof provides:

SECTION 4. REGION XII, to be known as CENTRAL MINDANAO, shall include the following provinces and
cities:
Provinces

Sultan Kudarat

Cotabato

South Cotabato

Cities

Cotabato

General Santos

The Municipality of Koronadal (Marinduque) in South Cotabato shall serve as the regional center.

In Chiongbian v. Orbos, this Court stressed the rule that the power of the President to reorganize the
administrative regions carries with it the power to determine the regional centers. In identifying the
regional centers, the President purposely intended the effective delivery of the field services of
government agencies.23 The same intention can be gleaned from the preamble of the assailed
DAO-99-14 which the DENR sought to achieve, that is, to improve the efficiency and effectiveness of the
DENR in delivering its services.

It may be true that the transfer of the offices may not be timely considering that: (1) there are no
buildings yet to house the regional offices in Koronadal, (2) the transfer falls on the month of Ramadan,
(3) the children of the affected employees are already enrolled in schools in Cotabato City, (4) the
Regional Development Council was not consulted, and (5) the Sangguniang Panglungsond, through a
resolution, requested the DENR Secretary to reconsider the orders. However, these concern issues
addressed to the wisdom of the transfer rather than to its legality. It is basic in our form of government
that the judiciary cannot inquire into the wisdom or expediency of the acts of the executive or the
legislative department,24 for each department is supreme and independent of the others, and each is
devoid of authority not only to encroach upon the powers or field of action assigned to any of the
other department, but also to inquire into or pass upon the advisability or wisdom of the acts
performed, measures taken or decisions made by the other departments.25

The Supreme Court should not be thought of as having been tasked with the awesome responsibility of
overseeing the entire bureaucracy. Unless there is a clear showing of constitutional infirmity or grave
abuse of discretion amounting to lack or excess of jurisdiction, the Court’s exercise of the judicial
power, pervasive and limitless it may seem to be, still must succumb to the paramount doctrine of
separation of powers.26 After a careful review of the records of the case, we find that this
jurisprudential element of abuse of discretion has not been shown to exist.1âwphi1

WHEREFORE, in view of the foregoing, the petition for review is GRANTED. The resolutions of the Court
of Appeals in CA-G.R. SP No. 58896 dated May 31, 2000 and August 20, 2001, as well as the decision
dated January 14, 2000 of the Regional Trial Court of Cotabato City, Branch 15, in Civil Case No 389, are
REVERSED and SET ASIDE. The permanent injunction, which enjoined the petitioner from enforcing the
Memorandum Order of the DENR XII Regional Executive Director, is LIFTED.

SO ORDERED.
G.R. No. L-26979 April 1, 1927

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiffs,

vs.
MILTON E. SPINGER, DALAMACIO COSTAS, and ANSELMO HILARIO, defendants.

Attorney-General Jaranilla, F. C. Fisher, and Hugh C. Smith for plaintiff.

Jose Abad Santos; Ross, Lawrence and Selph; Paredes, Buencamino and Yulo;
Araneta and Zaragoza; Charles E. Tenney; Camus, Delgado and Recto and Mariano H. de Joya for
defendants.

MALCOLM, J.:

This is an original action of quo warranto brought in the name of the Government of the Philippine
Islands against three directors of the National Coal Company who were elected to their positions by
the legislative members of the committee created by Acts. Nos. 2705 and 2822. The purpose of the
proceeding is to test the validity of the part of section 4 of Act No. 2705, as amended by section 2 of
Act No. 2822, which provides that "The voting power of all such stock (in the National Coal Company)
owned by the Government of the Philippine Islands 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."

The material facts are averred in the complaint of the plaintiff and admitted in the demurrer of the
defendants.

The National Coal Company is a corporation organized and existing by virtue of Act No. 2705 of the
Philippine Legislature as amended by Act No. 2822, and of the Corporation law. By the terms of the
charter of the corporation, the Governor-General was directed to subscribe on behalf of the
Government of the Philippine Islands for at least fifty-one per cent of the capital of the corporation.
The government eventually became the owner of more than ninety-nine per cent of the thirty
thousand outstanding shares of stocks of the National Coal Company. Only nineteen shares stand in
the names of private individuals.

On November 9, 1926, the Government-General promulgated Executive Order No. 37. Reference was
made therein to opinions of the Judge Advocate General of the United States Army and of the Acting
Attorney-General of the United States wherein it was held that the provisions of the statutes passed by
the Philippine Legislature creating a voting committee or board of control, and enumerating the duties
and powers thereof with respect to certain corporations in which the Philippine Government is the
owner of stock, are nullities. Announcement was made that on account of the invalidity of the portions
of the Acts creating the voting committee or board of control, the Governor-General would, thereafter,
exercise exclusivelythe duties and powers theretofore assumed by the voting committee or board of
control. Notice of the contents of this executive order was given to the President of the Senate and the
Speaker of the House of Representatives. (24 Off. Gaz., 2419.)

A special meeting of the stockholders of the National Coal Company was called for December 6, 1926,
at 3 o'clock in the afternoon, for the purpose of electing directors and the transaction of such other
business as migh properly come before the meeting. Prior thereto, on November 29, 1926, the
President of the Senate and the Speaker of the House of Representatives as members of the voting
committee, requested the Governor-General to convene the committee at 2:30 p. m., on December 6,
1926, to decide upon the manner in which the stock held by the Government in the National Coal
Company should be voted. TheGovernor-General acknowledged receipt of this communication but
declined to participate in the proposed meeting. The president of the Senate and the Speaker of the
House of Representatives did in fact meet at the time and place specified in their letter to the
Governor-General. It was then and there resolved by them that at the special meeting of the
stockholders, the votes represented by the stock of the Government in the National Coal Company,
should be cast in favor of five specified persons for directors of the company.

On December 6, 1926, at 3 o'clock in the afternoon, the special meeting of the stockholders of the
National Coal Company was held in accordance with the call. The Governor-General, through his
representative, asserted the sole power to vote the stock of the Government. The president of the
Senate and the Speaker of the House of Representatives attended the meeting and filed with the
secretary of the company a certified copy of the minutes of the meeting of the committee held at the
office of the company a half hour before. The Governor-General, through his representative,
thereupon objected to the asserted powers of the President of the Senate and the Speaker of the
House of Representatives, and the latter likewise objected to the assertion of the Governor-General.

The chair recognized the President of the Senate and the Speaker of the House of Representatives in
their capacity as majority members of the voting committee as the persons lawfully entitled to
represent and vote the Government stock. To this the representative of the Governor- General made
protest and demanded that it be entered of record in the minutes. The vote cast by the President of
the Senate and the Speaker of the House of Representatives was in favor of Alberto Barretto,Milton E.
Springer, Dalmacio Costas, Anselmo Hilario, and Frank B. Ingersoll. The Governor-General through his
represetative, alleging representation of the Government stock, cast his vote in favor of Alberto
Barreto, Romarico Agcaoili, Frank B. Ingersoll, H. L. Heath, and Salvador Lagdameo. The chair declared
the ballot cast by the President of the Senate and the Speaker of the House as electing the names
therein indicated, directors of the National Coal Company.

Immediately after the stockholder's meeting, the persons declared by the chairman to have been
elected, met and undertook to organized the board of directors of the National Coal Company by the
election of officers. All the directors for whom the President of the Senate and the Speaker of the
House of Representatives voted and who were declared elected at the meeting of the stockholders
participated in this meeting. Included among them, were the three defendants, Milton E. Springer,
Dalmacio Costas, and Anselmo Hilario.

The applicable legal doctrines are found in the Organic Law, particularly in the Organic Act, the Act of
Congress of August 29, 1916, and in statutes enacted under authority of that Act, and in decisions
interpretative of it.

The Government of the Philippine Islands is an agency of the Congress, the principal, has seen fit to
entrust to the Philippine Government, the agent, are distributed among three coordinate departments,
the executive, the legislative, and the judicial. It is true that the Organic Act contains no general
distributing clause. But the principle is clearly deducible from the grant of powers. It is expressly
incorporated in our Administrative Code. It has time and again been approvingly enforced by this court.

No department of the Government of the Philippine Islands may legally exercise any of the powers
conferred by the Organic Law upon any of the others. Again it is true that the Organic Law contains no
such explicit prohibition. But it is fairly implied by the division of the Government into three
departments. The effect is the same whether the prohibition is expressed or not. It has repeatedly
been announced by this court that each of the branches of the Government is in the main independent
of the others. The doctrine is too firmly imbedded in Philippine institutions to be debatable.
(Administrative Code sec. 17; Barcelon vs. Baker and Thompson [1905], 5 Phil., 87; U. S. vs. Bull [1910],
15 Phil., 7; Severino vs. Governor-General and Provincial Board of Occidental Negros [1910], 16 Phil.,
366; Forbes vs. Chuoco Tiaco vs. Crossfield [1910], 16 Phil., 534; Province of Tarlac vs. Gale [1913], 26
Phil., 338; Concepcion vs. Paredes [1921], 42 Phil., 599; U. S. vs. Ang Tang Ho [1922], 43 Phil., 1;
Abueva vs. Wood [1924], 45 Phil., 612; Alejandrino vs. Quezon [1924], 46 Phil., 83.)

It is beyond the power of any branch of the Government of the Philippine Islands to exercise its
functions in any other way than that prescribed by the Organic Law or by local laws which conform to
the Organic Law. The Governor-General must find his powers and duties in the fundamental law. An act
of the Philippine Legislature must comply with the grant from Congress. The jurisdiction of this court
and other courts is derived from the constitutional provisions.

These canons of political science have more than ordinary significance in the Philippines. To the
Government of the Philippine Islands has been delegated a large degree of autonomy, and the chief
exponent of that autonomy in domestic affairs is the Philippine Legislature. TheGovernor-General on
the other hand of the Government and symbolizes American sovereignty. That under such a political
system, lines of demarcation between the legislative and the executive departments are difficult to fix,
and that attempted encroachments of one on the other may occur, should not dissuade the Supreme
Court, as the guardian of the constitution, from enforcing fundamental principles.

The Organic Act vests "the supreme executive power" in the Governor- General of the Philippine
Islands. In addition to specified functions,he is given "general supervision and control of all the
departments and bureaus of the government of the Philippine Islands as far as is not inconsistent with
the provisions of this act. "He is also made "responsible for the faithful execution of the laws of the
Philippine Islands and of the United States operative within Philippine Islands."The authority of the
Governor-General is made secure by the important proviso "that all executive functionsof Government
must be directly under the Governor-General or within one of the executive departments under
thesupervision and control of the Governor-General. "(Organic Act, secs. 21, 22.) By the Administrative
Code, "the Governor-General, as chief Executive of the Islands, is charged with the executive control of
the Philippine Government, to be exercised in person or through the Secretaries of Departments, or
other proper agency, according to law." (Se.58)

The Organic Act grants general legislative power except as otherwise provided therein to the Philippine
Legislature. (Organic Act, secs. 8, 12.) Even before the approval of the existing Organic Act, it was held
that the Philippine Legislature has practically the same powersin the Philippine Islands within the
sphere in which it may operate as the Congress of the United States. (Chanco vs. Imperial [1916], 34
Phil., 329.) The rule judicially stated is now that an Act of the Philippine Legislature which has not been
expressly disapproved by Congress is valid, unless the subject-matter has been covered by
Congressional legislation, or its enactment forbidden by some provision of the Organic Law. The
legislative power of the Philippine Government is granted in general terms subject to specific
limitations. (Gaspar vs. Molina [1905], 5 Phil., 197; U. S. vs. Bull, supra; In re Guarina [1913], 24 Phil., 37;
U. S. vs. Limsiongco [1920],41 Phil., 94; Concepcion vs. Paredes, supra.)

An independent judiciary completes the governmental system. Thejudicial power is conferred on the
Supreme Couts, Courts of FirstInstance, and inferior courts. (Organic Act, se. 26)

It is axiomatic that the Philippine Legislature was provided to make the law, the office of the
Governor-General to execute the law, and the judiciary to construe the law. What is legislative, an
executive, or a judicial act, as distinguished one from the other, is not alwayseasy to ascertain. A
precise classification is difficult. Negatively speaking, it has been well said that "The legislature has no
authority to execute or construe the law, the executive has no authority to make or construe the law,
and the judiciary has no power to make or execute the law." (U. S. vs. And Tang Ho, supra.)

It is legislative power which has been vested in the Philippine Legislature. What is legislative power?
Judge Cooley says he understands it "to be the authority, under the constitution, to make laws, and to
alter and repeal them." Those matters which the constitution specifically confides to the executive "the
legislature cannot directly or indirectly take from his control." (Cooley's Constitutional Limitations, 7th
ed., pp. 126-131, 157-162.) President Wilson in his authoritative work, "The State", page 487,
emphasizes by italics that legislatures "are law making bodies acting within the gifts of charters, and
are by these charters in most cases very strictly circumscribed in their action." If this is true, the
converse that legislative power is not executive or judicial or governmental power needs no
demonstration. The Legislature essentially executive or judicial. The Legislature cannot make a law and
them take part in its execution or construction. So the Philippine Legislature is not a partaker in either
executive or judicial power, except as thePhilippine Senate participates in the executive power through
the Governor-General, and except as the Philippine Senate participates in the executive power through
having the right to confirm or reject nominations made by the Governor-General, and except as the
Legislature participates in the judicial power through being made the sole judge of the elections,
returns, and qualifications of its elective members and through having the right to try its own members
for disorderly behavior. The Philippine, Legislature may nevertheless exercise such auxiliary powers as
are necessary and appropriate to its indenpdence and to make its express powers effective.
(McGrain vs. Daugherty [1927], 273 U. S., 135; 71 Law. ed., 580.)

When one enters on a study of the abstract question, Where does the power to appoint to public
office reside?, one is nearly buried in a mass of conflicting authority. Yet we have been at pains to
review all of the cases cited by counsel and others which have not been cited. Shaking ourselves loose
from the encumbering details of the decisions, we discern through them a few elemental truths which
distiguish certain cases from others and which point the way for us in the Philippines.

The first principle which is noticed is that the particular wording of the constitution involved, and its
correct interpretation predetermines the result. Does the constitutions deny the legislative body the
right of exercising the appointing power. The legislature may not do so. (State vs. Kennon [1857], 7 O.
St., 547; Clark vs. Stanley[1872], 66 N. C., 28.) Does the constitution confer upon the government the
power to prescribe the manner of appointment. The authorities are in conflict as to whether the
legislature the power to prescribe the manner of appointment. The authourities are in conflict as to
whether the legislature may itself make the appointment. Does the constitution merely contain the
usual clause distributing the powers of government and no clause regulating appointments. The weight
of judicial opinion seems to be that the power of appointing to office is not exclusively an executive
function and that the legislature may not only create offices but may also fill them itself, but with a
vigorous opposition in most respectable quarters. (Contrast Pratt vs. Breckinridge [1901], 112 Ky., 1,
and State vs.Washburn [1901], 167 Mo., 680, with People vs. Freeman [1889], 80 Cal., 233, and
Richardson vs. Young [1909], 122 Tenn., 471.)

The second thought running through the decisions is that in the state governments, the selection of
persons to perform the functions of government is primarily a prerogative of the people. The general
powerto appoint officers is not inherent in any branch of the government. The people may exercise
their political rights directly or by delegation. Should the people grant the exclusive right of
appointment to the governor, he possesses that right; but if they should otherwise dispose of it, it
must be performed as the sovereign has indicated. Inasmuch, however, as the legislative body is the
repository of plenary power, except as otherwise restricted, and the chief executive of the State is not,
legislative bodies usually possess wide latitude in the premises. But this situation does not obtain in the
Philippines where the people are not sovereign, and where constitutional rights do not flow from them
but are granted by delegation from Congress.

It may finally be inferred from the books that the appointment of public officials is generally looked
upon as properly an executive function. The power of appointment can hardly be considered a
legislative power. Appointments may be made by the Legislature of the courts, but when so made be
taken as an incident to the discharge of functions properly within their respective spheres.
(State vs. Brill [1907], 100 Minn., 499; Stockman vs. Leddy [1912], 55 Colo., 24; Spartanburg
County vs. Miller [1924], 132 S. E., 673; Mechem on Public Officers, secs. 103-108; Mechem, The
power of Appoint to Office; Its Location and Limits, 1 Mich. Law Rev. [1903], 531.)

From the viewpoint of one outside looking in, it would seem that the State legislatures have all too
often been permitted to emasculate the powers properly belonging to the executive deparment, and
that the governor of the State has been placed with the responsibility of administering the government
without the means of doing so. The operations of the executive department have been fundamentally
variedby the legislative department. The legislature has absorbed strength, the executive has lost it.
This tendency has rather been tolerated than acquiesced in. The executive should be clothed with
sufficient power to administer efficiently the affairs of state. He should have complete control of the
instrumentalities through whom his responsibility is discharged. It is still true, as said by Hamilton, that
"A feeble executive implies a geeble execution of the government. A feeble execution is but another
phrase for a bad execution; and a government ill executed, whatever it may be intheory, must be in
practice a bad government." The mistakes of State governments need not be repeated here..

The history of the power of appointment and the stand taken by the judiciary on the question in the
State of Kentucky is of more than ordinary interest. Kentucky was permitted to become an
independent State by Virginia. The clause in the Kentucky constitution separating and guarding the
powers of government came from the pen of the author of the Declaration of Independence, Thomas
Jefferson. He it was who, in a letter to Samuel Kercheval, dated July 16, 1816, said: "Nomination to
office iss an executive function. To give it to thelegislature, as we do is Virginia, is a violation of the
principle of the separation of powers. It swerves the members from correctness by the temptation to
intrigue for office for themselves, and to a corrupt barter for votes, and destroys responsibility by
dividing it among a multitude." Possibly inspired to such action by the authorship of the portion of the
State constitution which was under consideration, in the early days of the Supreme Court of Kentucky,
Mr. Chief Justice Robertson in the case of Taylor vs. Commonwealth ([1830], 3 J. J.Marshall, 4010)
announced that "Appointmets to office are intrinsically executive," but that it might be performed by a
judicial officer when the duties of the office pertains strictly to the court. This opinion was shaken in
the case of Sinking Fund Commissioners vs. George ([1898], 104 Ky., 260) only to be afterwards
reaffirmed in Pratt vs. Breckinridge ([1901], 112 Ky., 1), and in Sibert vs. Garrett ([1922], 246 S. W., 455).
in the decision in the latter case, one of the most recent on the subject, the Supreme Court of
Kentucky after reviewing the authorities refused to be frightened by the bugaboo that numerically a
greater number of courts take a contrary view. It said: "We are convinced that they by doing so are
inviting destruction of the constitutional barriers separating the departments of government, and that
our interpretation is much the sounder one and is essential to the future preservation of our
constitutional form of government as originally intended by the forefathers who conceived it. . . . Such
power (of appointment) on the part of the Legislature, if a full exercise of it should be persisted in,
would, enable it to gradually absorb to itself the patronage and control of the greater part of the
functioning agencies of the state and county governments, and, thus endowed, it would be little short
of a legislative oligarhy."

It is of importance, therefore, not to be confused by Statedecisions, and invariably to return to the

exact provisions of the Philippine Organic Law which should be searched out and effectuated.

The right to appoint to office has been confided, with certain well defined exceptions, by the
Government of the United States to the executive branch of the government which it has set up in the
Philippines. Let the Organic Law speak upon this proposition.

The original government inaugurated in the Philippines after American occupation was military in
nature, and exercised all the powers of government, including, of course, the right to select officers.
The original civil authority with administrative functions establishedhere was the second Philippine
Commission. President Mckinley, in his Instructions to the Commisions of April 7, 1900, ever since
considered as the initial step taken to introduce a constitutional government, provided that until
further action should be taken by congress or otherwise, "The Commission will also have power . . . . to
appoint to office such officers under the judicial, educational, and civil- service systems, and in the
municipal and departmental goernments, as shall be provided for." When the first Civil Governor was
appointed on June 21, 1901, the President again took account of the power of appointment in the
following language: The power to appoint civil officers, hererofore Governor, will be exercised by the
Civil Governor with the advice and consent of the commission." The Congress when it came to make
legislative provision for the administration of the affairs of civil government in the Philippine Islands, in
the Act of Congress of July 1, 1902, the Philippine Bill, "approved, ratified and confirmed," the action of
the President, and in creating the office of Civil Governor and authorizing said Civil Governor to
exercise powers of government to the extent and in the manner set forth in the exectutive order date
June 21, 1901. (Philippine Bill, sec. 1.) Congress in the same law provided that the Islands "shall
continue to be governed as thereby and herein provided." (See opinion of Attorney-General Araneta on
the power of the Governor-General to appoint and remove civil officers, 3 Op. Atty.-Gen., 563.)

Thus stood the right to appoint to office for fourteen years.

The Organic Act of August 29, 1916, included what follows on the subject of appointments. The
governor-General "shall, unless otherwise herein provided, appoint, by and with the consent of the
Philippine Senate, such officers as may now be appointed by the Governor-General,or such as he is
authorized by law to appoint." (Organic Act, sec. 21.) The exception to the general grant is that the
Philippine Legislature "shall provide for the appointment and removal of the heads of the executive
departments by the Governor-General." (Organic Act, sec. 22.) Each House of the Philippine Legislature
may also elect a presiding officer, a clerk, a sergeant at arms, and such other officers and assistants as
may be required. (Organic Act, sec. 18.) The Philippine Legislature is authorized to choose two
Residentcommissioners to the United States. (Organic Act, sec. 20.) The prohibition on the local
Legislature, which has been thought of as referring to the Resident Commissioners, is that "No Senator
or Representative shall, during the time for which he may have been elected, be eligible to any office
the election to which is vested in the Legislature, nor shall be appointed to any office of trust or profit
which shall have been created or the emoluments of which shall have been increased during such
term." (Organic Act, sec. 18.)

The Administrative Code provides the following: "In addition to his general supervisory authority, the
Governor-General shall have such specific powers and duties as are expressly conferred or imposed
onhim by law and also, in particular, the powers and duties set forth," including th special powers and
duties "(a) To nominate and appointofficials, conformably to law, to positions in the service of the
Government of the Philippine Islands. (b) To remove officials from office conformably to law and to
declare vacant the offices held by such removed officials. For disloyalty to the Government of
theUnited States, the Governor-General may at any time remove a personfrom any position of trust or
authority under the Government of the Philippine Islands." (Sec. 64 [a], [b].) The Administrative Code
lists the officers appointable by the Governor-General. (Sec. 66.)

It will be noticed that the Governor-General, in addition to being empowered to appoint the officers
authorized by the Organic Act and officers who thereafter he might be authorized to appoint, was to
continue to possess the power to appoint such officers as could be appointed him when the Organic
Act wa approved. The careful phraseology of the law and the connection provided by the word "now"
with prior Organic laws is noteworthy. It would not be at all illogical to apply the same rule to the
Governor-General in his relations with the Legislature which the judiciary uniformly applies to the
courts in their relations with the Legislature, which is, that the Legislature may add to, byt may not
diminish, the jurisdiction of the courts — The Legislature may add to, but may not diminish, thepower
of the Governor-General. (Organic Act, sec. 26; Barrameda vs. Moir [1913], 25 Phil., 44; In
re Guarina, supra; U. S. vs. Limsiongco, supra.)

It will also not escape attention that the only reference made to appointments by the Legislature
relates to the selection of Secretaries of Departments, of officers and employees for the Legislature,
and of Resident Commissioners, from which it would naturally be inferred that no other officers and
employees may be chosen by it. The exceptions made in favor of the Legislature strengthen rather than
weaken the grant to the executive. The specific mention of the authority of the Legislature to name
certainofficers is indicative of a purpose to limit the legislative authority in the matter of selecting
officers. The expression of one things not expressed. Had it been intended to give to the Philippine
Legislature the power to name individuals to fill the offices which it has created, the grant would have
been included among the legislative powers and not among the executive powers. The administrative
controlof the Government of the Philippine Islands by the Governor-Generalto whom is confided the
responsibility of executing the laws excludes the idea of legislative control of administration.

Possibly, the situation may better be visualized by approching the question by a process of elimination.
Is the power of appointment judicial? No one so contends. Is the power of appointment legislative?
Not so if the intention of the Organic Law be carried out and if the Legislature be confined to its
law-making function. Is the power of appointment executive? It is.

The exact question of where the power of appointment to office is lodged has never heretofore arisen
in this jurisdiction. But a decision of this court and a controlling decision of the United States Supreme
Court are in point.

In Concepcion vs. Parades, supra, this court had before it a law which attempted to require a drawing
of lots for judicial positionss in derogation of executive power. The case was exhaustively argued
andafter prolonged consideration, the questioned portion of the law was held invalid as in violation of
the provisions of the Organic Act. Following the lead of Kentucky, it was announced that "Appointment
to office is intrinsically an executive act involving the exercise of discretion."

In the case of Myers vs. United States ([1926], 272 U. S., 52; 71 Law. ed., 160), the United States
Supreme Court had presented the question whether, under the Constitution, the President has the
exclusive power of removing executive officers of the United States whom he has appointed by and
with the advice and consent of the Senate. The answer was that he has. The decision is ephocal. The
Chief Justice quoted from Madison the following:

If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is
that which separates the legislative, executive and judicial powers. If there is any point inwhich the
separation of the legislative and executive powers ought to be maintained with great caution, it is that
which relates to officers and offices.

'The powers relative to offices are partly legislative and partly executive. The legislature creates the
office, defines the powers, limits its duration and annexes a compensation. This done, the legislative
power ceases. They ought to have nothing to do with designating the man to fill the office. That I
conceive to be of an executive nature. Although it be qualified in the Constitution, I would not extend
or stain that qualification beyond the limits precisely fixed for it. We ought always to consider the
Constitution with an eye to the principles upon which it was founded. In this point of view, we shall
readily conclude that if the legislaturedetermines the powers, the honors, and emoluments of an office,
we should be insecure if they were to designate the officer also. The nature of things restrains and
confines the legislative and executive authorities in this respect; and hence it is that the Constitution
stipulates for the independence of each branch of the Government.' (1 Annals of Congress, 581, 582.
Also see Madison in The Federalist, Nos. 47, 46.).
The distinguished Chief Justice said:

"* * * The Constitution was so framed as to vest in the Congress all legislative powers therein granted,
to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts
as Congress might establish, the judicial power. From this division on principle, the reasonable
construction of the Constitutionmust be that the branches should be kept separate in all cases in which
they were not expressly blended, and the Constitution should be expounded to blend them no more
than it affirmatively requires. Madison, 1 Annals of Congress, 497.

xxx xxx xxx

The vesting of the executive power in the President was essentially a grant of the power to execute the
laws. But the President alone and unaided could not execute the laws. He must execute them by the
assistance of subordinates. This view has since been repeatedlyaffirmed by this court. . . . As he is
charged specifically to take care that they be faithfully executed, the reasonable implication, even in
the absence of express words, was that as part of his execute power he should select those who werre
to act for him under his direction in the execution of the laws. The further implication must be, in the
absence of any express limitation respecting removals, that as his selection of administrative officers is
essential to the execution of the laws by him, so must be his power of removing those for whom he
cannot continue to be responsible. (Fisher Ames, 1 Annals of Congress, 474.) It was urged that the
natural meaning of the term "executive power" granted the President included the appointment and
removal of executive subordinates. If such appointments and removals were not an exercise of the
executive power, what were they? They cetainly were not the exercise of legislative or judicial power in
government as usually understood.

It is quite true that in state and colonial governments at the time of the Constitutional Convention,
power to make appointments and removals had sometimes been lodged in the legislatures or in the
courts, but such a disposition of it was really vesting part of the executive power in another branch of
the Government.

xxx xxx xxx

We come now to a period in the history of the Government when both Houses of Congress attempted
to removes this constitutionalconstruction and to subject the power of removing executive officers
appointed by the President and confirmed by the Senate to the control of the Senate, indeed finally to
the assumed power in Congress to place the removal of such officers anywhere in the Government.

xxx xxx xxx

The extreme provisions of all this legislation were a full justification for the considerations so strongly
advanced by Mr. Madison and his associates in the First Congress, for insisting thatthe power of
removal of executive officers by the President alone wasessential in the division of powers between
the executive and the legislative bodies. It exhibited in a clear degree the paralysis to which a partisan
Senate and Congress could subject the executive arm and destroy the principle of executive
responsibility, and separation of the powers sought for by the framers of our Government, if the
President fhad no power of removal save by consent of the Senate. It was an attempt to redistribute
the powers and minimized those of the President.

xxx xxx xxx

For the reasons given, we must therefore hold that the provision of the law of 1876 by which the
unrestricted power of removal of first class postmasters is denied to the President is in violation of the
Constitution and invalid.

Membership in the Committee created by Acts Nos. 2705 and 2822 is an office. No attempt will be
made to accomplish the impossible, which is to formulate an exact judicial definitions of term "office."
The point is that the positions in question constitute an "office," whether within the meaning of that
word as used in the Code of Civil Procedure under the topic "Usurpation of Office," and in the
jurisprudence of Ohio from which these portions of the Code were taken; whether within the local
definitions of "office" found in the Administrative Code and the Penal Code; or whether within the
constitutional definitions approved by the United States Supreme Court. (Code of Civil Procedure, secs.
197 et seq., 519; Act No. 136, sec. 17; State vs. Kennon, supra, cited approvingly in Sheboygran
co. vs. Parker [1865], 3 Wall., 93; Administrative Code, sec. 2; Penal Code, arts. 264, 401.) Paraphrasing
the United States Supreme Court in alate decision, there is not lacking the essential elements of a
public station, permanent in character, created by law, whose incidents and duties were prescribed by
law. (Metcalf & Eddy vs. Mitchell [1926], 269 U. S., 514; U. S. vs. Maurice [1823], 2 Brock., 96; U.
S. vs.Hartwel [1867], 6 Wall., 385.) The Legislature did more than add incidentalor occasional duties to
existing executive offices for two of the members of the voting committee are representatives of
thelegislative branch. The Supreme Court of North Carolina has held that the Act of the General
Assembly giving to the President of the Senate and the Speaker of the House of Representatives the
power to appoint proxies and directors in all corporations in which the State has an interest, creates a
public office and fills the same by appointment of the Legislature. (Clark vs. Stanley [1872], 66 N. C.,
28;Howerton vs. Tate [1873], 68 N. C., 498; Shoemaker vs. U. S. [1892], 147 U. S., 282; Advisory
Opinion to Governor [1905], 49 Fla., 269; Mechem on Public Officers, Ch. I.)

To tell the truth, it is possible that the earnestness of counsel has just led us to decide too much. Not
for a moment should there be dismissed from our minds the unusual and potently effective proviso of
section 22 of the Organic Act, "That all executive functions of the government must be directly under
the Governor-General or within one of the executive departments under the supervision and control of
the Governor-General." At the very least,the performance of duties appurtenant to membership in the
voting committee is an executive function on the Government, which the Organic Act requires must be
subject to the unhampered control of the Government-General. The administrative domination of a
governmentally organized and controlled corporation is clearly not a duty germane to the
law-makingpower.

The incorporation of the National Coal Company has not served to disconnect the Company or the
stock which the Government owns in it from the Government and executive control. The Philippine
Legislatureis empowered to create and control private corporations. (Martinez vs. La Asociacion de
Señoras Damas del Santo Asilo de Ponce [1909], 213 U. S., 20.) The National Coal Company is a private
corporation.(National Coal Company is a private corporation. (National Coal Company vs. Collector of
Internal Revenue [1924], 46 Phil., 583.) By becoming a stockholder in the National Coal Company, the
Goverment divested itself of its sovereign character so far as respects the transactions of the
corporation. (Bank of the U. S. vs. Planters' Bank of Georgia [1824], 9 Wheat., 904.) Unlike the
Government, the corporation may be sued without its consent, and is subject to taxation. Yet the
National Coal Company remains an agency or instrumentality of government. Mr. Chief Justice
Marshall in speaking of the Bank of the United States said, "It was not created for its own sake, or for
private purposes. It has never been supposed that Congress could create such a corporation."
(Osborn vs. Bank of the U. S. [1824], 9 Wheat., 738; National Bank vs. Commonwealth [1869], 9 Wall.,
353; Railroad Co. vs. Peniston [1873], 18 Wall., 5; Chesapeake & Delaware Canal Co. vs. U. S. [1918],
250 U. S., 123.) Of the National Coal Company, it has been said by Mr. Justice Johnson as the organ of
the court in National Coal Company vs. Collector of Interanl Revenue, supra, that "The Government of
the Philippine Islands is made the majority stockholder, evidently in order to insure proper
governmental supervision and control, and thus to place the Government in a position to render all
possible encouragement, assistance and help in the prosecution and furtherance of the company's
business.' The analogy is closer in the companionNational Bank case, No. 27225.

It further is inconvertible that the Government, like any other stockholder, is justified in intervening in
the transactions in the corporation, and in protecting its property rights in the corporation. Public
funds were appropriated to create the National Coal Company. Those funds were used to purchase
stock. The voting of the government stock is the prerogative of the stockholder, not the prerogative of
the corporation. It is transaction in, but not of, the corporation. The stock is property. The Government,
the owner of the majority stock in the company, naturally dominates the management of its property.
The Government may enforce its policies and secure relief in and through the corporation and as
stockholder.

The situation will be better understood if it be recalled that, in addition to the National Coal company
(Acts Nos. 2705 and 2822), the Philippine Legislature has created the Philippine National Bank (Acts
Nos. 2612, 2747, 2938, and 3174), the National Petroleum Company (Act No. 2814), the National
Development Company (Act No. 2849), the National Cement Company (Act No. 2855), and the
NationalIron Company (Act No. 2862). The aggregate authorized capital stock of these companies is
P54,500,000. The Legislature has in each of these instances directed that a majority of the shares of
stock shall be purchased for the Government, and has appropriated money for this purpose. There
have likewise been authorized corporations for the promotion of the merchant marine (Act No. 2754).
The stock of the Manila Railroad Company has been purchased for the Government. (Acts Nos. 2574,
2752, and 2923.) All these are conspicuous instances of a paternally inclined government investing
large sums in business enterprises which after acquisition or organization have vitally concerned the
Government. In all of the companies mentioned, the stock is to be voted by a committee or board of
control, consisting of the Governor-General, the President of the Senate, and the Speaker of the House
of Representatives. The power of the majority stckholders to vote the government stock in the
corporation carries with it the right, under our Corporation Law, to elect all the directors, to remove
any or all of them, and to dissolve the corporation by voluntary proceedings. (Corporation Law, secs. 31,
34, 62.) In the case of the Philippine National Bank, the law explicitly enumerates variousfunctions of
the bank which may not be performed without the express approval of the Board of Control. (Act No.
2938.)

Very important property rights are involved in the transactions in the governmental directed
corporations. Just as surely as the duty of caring for government property is neither judicial nor
legislative in character is it as surely executive. Yet a majority of the voting committee or board of
control is made up of the presiding officers of the two houses of the Legislature and they are in a
position to dictate action to the directors and subordinate personel of these corporations.

Based on all the foregoing considerations, we deduce that the power of appointment in the Philippines
appertains, with minor exceptions, to the executive department; that membership in the voting
committee in question is an office or executive function; that the National Coal Company and similar
corporations are instrumentalities of the Government; that the duty to look after government agencies
and government property belongs to the executive department; that the placing of members of the
Philippine Legislature on the voting committee constitutes an invasion by the Legislative Department of
the provileges of the Executive Department. Under a system of government of delegated powers,
under which delagation legislative power vests in the Philippine Legislature and executive power vests
in the Governor-General, and under which Governor-General and a specified power of appointment
resides in the Philippine Legislature, the latter cannot directly or indirectly perform functions of an
executive nature through the designation of its presiding officers as majority membersof a body which
has executive functions. That is the meaning we gather from the tri-partite theory of the division of
powers. That is the purport of the provisions of the Organic Law. That has been the decided trend of
persuasive judicial opinion.

The intimation contained in the conclusions just reached does not necessarily mean that the plaintiff
will be privileged to substitute the directors designated by the Governor-General for those designated
by the two presiding officers in the Legislature. The burden has heretofore been on the defenfants.
From this point, it will be on the plaintiff. It is well established in quo warranto proceedingsthat the
failure of the defendant to prove his title does not established that of plaintiff. (People vs. Thacher
[1874], 10 N. Y., 525.)

The answer to the problem comes from two directions. The acting Attorney-General of the United
States finds the solutions in the supreme executive power entrusted to the Governor-General, while
cousel for the plaintiff advance the rule of statutory construction pertaining to partial invalidity. We are
frank to say that we experience difficulty in following the lead of the law officer of the Government of
the United States. The Governor-General since the approval of the last Organic Act has had no
prerogative powers. His powers are so clearly and distincly stated that there ought to be no doubt as to
what they are. Like the Legislature and the judiciary,like the most inconspicuous employee, the
Governor-General must find warrant for his every act in the law. At this stage of political development
in the Philippines, no vague residuum of power should be left to lurk in any of the provsions of the
Organic Law.

Counsel for the plaintiff rely on a decision of this court (U. S. vs. Rodriguez [1918], 38 Phil., 759) as best
expressing the local rule regarding statutes void in part. Counsel for the defendants cite an earlier case
(Barrameda vs. Moir [1913], 25 Phil., 44). As the principle announced in the last cited case is the more
comprehensive and is much fairer to the defendants, we give it preference. It was there announce:

Where part of a statute is void, as repugnant to the Organic Law, while another part is valid, the valid
portion, if separable from the invalid, may stand and be enfored. But in order to do this, the valid
portion must be so far independent of the invalid portion that it is fair to presume that the Legislature
would have enacted it by itself if they had supposed that they could not constitutionally enact the
other. Enough must remain to make a complete, intelligible, and valid statute, which carries out the
legislative intent. The void provisions must be eliminated without causing results affecting the main
purpose of the Act in a manner contrary to the intention of the Legislature. The language used in the
invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains
must express the legislative will independently of the void part since the court has no power to
legislate.

Omitting reference to the President of the Senate and the Speaker of the House of Representative in
section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, it would then read: "The voting
powerof all such stock owned by the Government of the Philippine Islands shall be vested exclusively in
a committee consisting of the Governor- General." Would the court be justified in so enforcing the law
without itself intruding on the legislative field?

The Philippine Legislature, as we have seen is authourized to create corporations and offices. The
Legislature has lawfully provided for a National Coal Company, but has unlawfully provided for two of
its members to sit in the committee. Would this court be doing violence to the legislative will if the
votig power be continued solely in the hands of the Governor-General until different action is taken by
the Legislature? We conclude that we would not, for the reason that the primordial purpose of the
Legislature was "to promote the business of developing coal deposits . . . and of mining . . . and selling
the coal contained in said deposits." (Act No. 2705, sec 2; Act No.2822, sec.1.) The incidental purpose
of the Legislature was to provide a method to vote the stock owned by the Government in the National
Coal comapny. In the words of the United States Supreme Court, "The striking out is not necessarily by
erasing words, but it may be by disregarding the unconstitutional provision and reading the statute as
if that provision was not there." (Railroad companies vs. Schutte [1880], 103 U. S. 118;
State vs. Westerfield [1897], 23 Nev., 468; State vs. Washburn, supra; State vs. Wright [1913], 251 Mo.,
325; State vs. Clausen [1919], 107 Wash.,667; 1 Lewis Sutherland, Statutory construction, Second ed.
Ch. IX.)

The decision of the United States Supreme Court in Clayton vs. People ([1890], 132 U. S., 632) is
particularly applicable on account of relating to the validity of an Act passed by a territorial legislature,
the question of partial invalidity, and the contention likewise here made, that since the law in question
had been on the statute books for a number of years, it must be considered as having been impliedly
ratified by the Congress. An Act of the Legislature of Utah of 1878 had declared that the auditor and
the treasurer shall be elected by the voters of the territory. In a decision handed down in 1886, the
Supreme Court of the territory of Utah held the act void because in conflict with the organic act
creating the territory, which provided that the governor, with the consent of the legislative council,
shall appoint such officers. It further held that a territorial statute invalid when enacted is not validated
by the failureof the congress expressly to disapprove it. (People vs. Clayton [1886], 4 Utah, 421.) The
United States Supreme Court on appeal affirmed the judgment. It said:

It can hardly be admitted as a general proposition that under the power of Congress reserved in the
Organic Acts of the territories to annul the Acts of their legislature the absence of any action by
Congress is to be construed to be a recognition of the power of the Legislature to pass laws in conflict
with the Act of Congress underwhich they were created. . . . We do not think that the acquiescenceof
the people, or of the Legislature of Utah, or of any of its officers, in the mode for appointing the
auditor of public accounts, is sufficient to do away with the clear requirements of the organic Act on
that subject. It is also, we think, very clear that only that part of the Statute of Utah which is contrary to
the Organic act, namely, that relating to the mode of appointment of the officer, is invalid; that so
much of it as creates the office of auditor of public accounts and treasurer of the Territory is valid; and
that it can successfully and appropriately be carried into effect by an appointment made by the
governor and the Council of the Territory, as required in the Act of Congress.

On the assumption, however, that the entire provision authorizing the voting committee be considered
as wiped out, yet we think it would still devolve on the Governor-General to protect the public
interests and public property. He is made responsible for the execution of the laws, and he would be
unfaithful to that trust if, through inaction, instrumentalities of government should fail to function and
government property should be permitted to be dissipated.

Counsel for the dependants have injected the argument into the discussion that, as the President of
the Senate and the Speaker of the House of Representatives are at least de facto officers, their right to
act as members of the voting committee cannot be collaterally attacked, and that the defendants in
this suit are the de jure members of the board of directors of National Coal Company. Contentions such
as there are out of harmony with the avowed purpose to avoid technical obstruction, and to secure a
definite expression of opinion on the main issue. However, it remains to be said that this is a direct
proceeding to test the right of the defendants to the offices to which they consider themselves entitled.
The inquiry then may go, as is proper in quo warranto proceedings, to the extent of determining the
validity of the act authorizing the offices. The fallacy of the argument relating to the de facto doctrine is
that, although there may be a de facto officer in a de jure office, there cannot be a de facto officer in a
de fact office. There is no such thing as de facto office under an unconstitutional law.
(Norton vs. Shelby County [1886], 188 U. S., 425.)

Before terminating, a few general observations may be appropriate.The case has been carefully
prepared and elaborately argued. All parties appear to desire to have the matter at issue definitely
determined. We have endeavored to accomodate them. But in such a bitterly fought contest, the
ingenuity of counsel presses collateralpoints upon us which the court need not resolve. We thus find it
unnecessary to express any opinion on the propriety or legality of Executive Order No. 37, on that
portion of section 18 of the Organic Act which disqualifies Senators or Representatives for election or
appointment to office and no other subsidiary matters. Need it be added that the court is solely
concerned with arriving at a correct decision on a purely legal question.

Every other consideration to one side, this remains certain—The congress of the United States clearly
intended that the Governor- General's power should be commensurate with his responsibility. The
Congress never intended that the Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but shorn of the power to do so. The interests
of the Philippines will be best served by strict adherence to the basic principles of constitutional
government.

We have no hesitancy in concluding that so much of section 4 of Act No. 2705, as amended by section
2 of Act No. 2822, as purports to vest the voting power of the government-owned stock in the National
Coal Company in the President of the Senate and the Speaker of the House of Representatives, is
unconstitutional and void. It results, therefore, in the demurrer being overruled, and as it would be
impractible for the defendants to answer, judgment shall be rendered ousting and excluding them
from the offices of directors of the National Coalcompany. So ordered, without costs.

Street, Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions

JOHNSON, J., concurring:

Under the admitted facts the writ of quo warranto prayed for should be granted. Milton E. Epringer,
Dalmacio Costas, and Anselmo Hilario are unlawfully and illegally holding and exercising the position of
members of the Board of Directors of the National Coal Company andshould be ousted and altogether
excluded therefrom; that Romarico Agcaoili, H. L. Heath, and Salvador Lagdameo have been duly and
legally elected as members of the Board of Directors of the National Coal Company, and judgment is
rendered that they be inducted into said position to take charge thereof and to perform the duties
incumbent upon them as members of said board of directors.

The principal questions involved in this action are:

(a) May the Legislative Deparment of the Government of the Philippine Islands adopt a law and provide
that some of its members shall take part in its execution?

(b) Was the Governor-General of the Philippine Islands authorized, under the law, to promulgate
Executive Order No. 37? and,

(c) Were the respondents legally elected as members of the Board of Directors of the National Coal
Company?

Inasmuch as these questions involve respective powers of two great departments of the Government,
they should be seriously considered by this court and not to be lightly resolved on.

These questions were presented to the Supreme Court of the Philippine Islands for solution in an
original action, praying for the issuance of the extraordinary legal writ of quo warranto. In relation with
the questions involved, the specific and definite purpose of the action is (a) to inquire into the right of
the respondents, Milton E. Spinger, Dalmacio Costas, and Anselmo Hilario to act as members of the
Board of Directors of the National Coal Company, a private corporationcreated by special charter by an
Act of the Philippine Legislature; and (b) to have inducted into office, in their place and stead, said
Romarico Agcaoili, H. L. Heath, and Salvador Lagdameo.

To the petition presented by the Government of the Philippine Islands (ex rel. Romarico Agcaoili, H. L.
Heath and Salvador Lagdameo) the respondents demurred. The facts are therefore admitted. A
question of law only is presented for solution.

THE FACTS UPON WHICH THE ACTION IS BASED

The facts upon which the petition is based are few, clear, and well defined. There is no dispute upon
the facts. They are briefly: That the National Coal Company is a private corporation created by Act No.
2705 (vol. 2, Public Laws, p. 216, March 10, 1917) as amended by Act No. 2822 (vol. 14, Public Laws, p.
202, March 5, 1919). Act No. 2705, as amended by Act No. 2822, constitutes the charter of said
company. Said Acts are not public laws. They are private Acts of the Philippine Legislature. They
provide that said company shall be subject to the provisions of the Corporation Law (Act No. 1459) in
so far as they are not inconsistent with the provisions of said charter, and shall have the general
powers mentioned in said Act (Act No. 1459) and such other powers as may be necessary to enable it
to prosecute the business of developing coal deposits in the Philippines Islands, and mining, extracting,
transporting, and selling the coal contained in said deposits. Said charter provided that the capital of
said company shall be P3,000,000, divided into 30,000 shares of stock with a par value of P100 per
share.

Said charter further provided that the Governor-General on behalf of the Government of the Philippine
Islands, shall subscribe for 51 per centum of said capital stock, and that the "voting power of all such
stock owned by the Government of the Philippine Islands 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." At the time of the adoption of said charter the Philippine Legislature appropriated
the sum of P1,530,000 for investment in the stock of said company to be acquired by the Government
of the Philippine Islands.

The National Coal Company was organized in accordance with the provisions of its charter. A Board of
Directors was elected from time to time. Its business was carried on by said Board of Directors. Finally a
legal question arose concerning the right of the President of the Senate and the Speaker of the House
of Representatives to act with the Governor-General in voting the stock of said company. That question
was referred to the Judge Advocate General of the United States Army as well as to the
Attorney-General of the United States. Upon full consideration of the question, the Judge Advocate
General and the Attorney-General reached the conclusion that the President of the Senate and the
Speaker of the House of Representatives were without authority in law to take part in the voting of the
stock owned by the Government, for the reason that the particular provision of the charter granting or
creating said power as illegal and void, and that the participation of the President of the Senate and the
Speaker of the House of Representatives in voting said stock was an illegal encroachment upon the
powers of the Executive Department of the Government. Upon receiving said opinions, the
Government-General evidently for the purpose of avoiding criticism that he was permitting an illegal
and void law to be enforced and, if possible, impeachment proceedings for a failure or refusal on his
part to comply with the law of the land, issued an executive order, known as Executive Order No. 37.
Executive Order No. 37 provides:

Whereas it is held in an opinion of the Judge Advocate General of the United States Army, confirmed
by an opinion of the Attorney-General of the United States, received at the Office of the Executive,
November seventh, nineteen hundred and twenty-six, that the provisions of the statutes passed by the
Philippine Legislature creating a 'Board of Control' or 'Committee' and enumerating the duties and
powers thereof, with respect to certain corporations in which the Insular Government is the owner of
stock, are nullities; that the remaining portions of said statutes are valid; that the duties imposed by
said statutes upon said Board or Committee are executive in their nature, and subject to the provisions
of the Organic Act relating to the executive functions; that said executive duties and powers may be
performed as in other cases not specifically provided for by law.

Now, therefore, acting under authority of said opinions, the duties and powers heretofore exercised by
said 'Board of Control' or Committee' shall, from and after this date, be exercised solely by the
Governor-General pursuant to the executive power vested in him by the Organic Act."

Notice of said Executive Order was duly and timely given by the Governor-General to the President of
the Senate and the Speaker of the House of Representatives. The Governor-General further notified
the President and Speaker that "he would thereafter exercise exclusively the duties and powers" with
respect to the voting of the stock held by the Government of the Philippine Islands in the National Coal
Company.

At the time of the issuance of said Executive Order No. 37 or thereabouts the Government of the
Philippine Islands was the registered owner of about 29,975 shares of the total of 30,000 shares of said
company. The President of the Senate and the Speaker of the House of Representatives protested
against the alleged assumed authority on the part of the Governor-General to vote said government
stock and insisted upon their right to participate in the voting of the same.

Later, and without going into great detail, a meeting of the stockholders was called for the purpose of
electing members of the Board of Directors of said company. In accordance with the preannounced
intention, the President of the Senate and the Speaker of the House of Representatives attended the
meeting of the stockholders of the company and then and there asserted their right, as a majority of
the "Voting Committee," to vote the stock of the Government. Against the objections and protest of
the Governor-General they were permitted by the Chairman of the meeting to vote all of the stock
held by the Government of the Philippine Islands. They deposited a ballot purporting to be signed by
them on behalf of the said "Voting Committee" for the election as Directors of Alberto Barretto, Frank
B. Ingersoll, Milton E. Springer, Dalmacio Costas, and Anselmo Hilario. Notwithstanding the objection
and protest of the Governor-General to the acceptance of said ballot, the Chairman permitted it to be
deposited in favor of the persons for whom it was cast. At the same meeting of the stockholders and at
the same time the Governor-General, insisting upon his sole right to vote the stock owned by the
Government of the Philippine Islands, cast his ballot representing all of the stock of the Government, in
favor of Alberto Barretto, Frank B. Ingersoll, Romarico Agcaoili, H. L. Heath, and Salvador Lagdameo,
which ballot was rejected by the Chairman and the same was not allowed to be deposited.

Against the ruling of the Chairman, permitting the ballot of the President of the Senate and the
Speaker of the House of Representatives to be deposited on behalf of the said "Voting Committee" a
protest of the Governor-General was duly and timely presented. Notwithstanding said protest on the
part of the Governor-General, that the President of the Senate and the Speaker of the House of
Representatives had no authority to vote the stock of the Government nor to participate in the voting
of the same, the Chairman declared that Alberto Barretto, Frank B. Ingersoll, Milton E. Springer,
Dalmacio Costas, and Anselmo Hilario had each received a majority of the votes cast and that said
persons had been duly elected as members of the Board of Directors of the National Coal Company.

It will be noted that both the Governor-General, and the President of the Senate and Speaker of the
House of Representatives voted for the election of Alberto Barretto, and Frank B. Ingersoll. There is no
objection in this record to the right of said persons to act as members of the Board of Directors. The
contention of the Government is, that Romarico Agcaoili, H. L. Heath and Salvador Lagdameo had been
duly and legally elected as members of the Board of Directors by the vote of the Governor-General,
and that Milton E. Springer, Dalmacio Costas, and Anselmo Hilario had not been duly and legally
elected as members of the Board of Directors by the vote of the President of the Senate and the
Speaker of the House of Representatives, and that they should be ousted and altogether excluded from
their office.

Considering the foregoing facts we have the question squarely presented, whether the persons elected
by the Governor-General in voting the stock owned by the Government had been duly and legally
elected directors of said company, or whether the persons elected by the President of the Senate and
the Speaker of the House of Representatives were legally elected as such Directors.

It can scarcely be contended that the President of the Senate and the Speaker of the House of
Representatives, when the Governor-General is present at a meeting of the stockholders of said
company, have a right to vote all of the stock of said company, to the entire exclusion of the
Governor-General. There is nothing in the law which indicates the manner in which the stock owned by
the Government of the Philippine Islands may be voted when a difference of opinion exists among the
members of the "Voting Committee" as to how the same shall be voted.

Without discussing the method of voting the stock when there is a difference of opinion in the "Voting
Committee" as to how it shall be voted, we pass to the question, whether or not the President of the
Senate and the Speaker of the House of Representatives, as members of the Legislative Department of
the Government, have any right whatever to participate in the voting of the stock belonging to the
Government of the Philippine Islands.

THE RIGHT OF THE LEGISLATIVE DEPARTMENT OF THE GOVERNMENT TO EXECUTE OR TO ASSIST IN

THE EXECUTION OF ITS LAWS.

The Legislative Department of the Government adopted the law creating the charter of the National
Coal Company. The Legislative Department of the Government provided a method, in said charter, by
which it, through the President of the Senate and the Speaker of the House of Representatives, should
assist in the execution of said law.

It has been stated so frequently by eminent statesmen and jurists, that it scarcely needs the citation of
authorities to support the doctrine, that wherever the American flag flies as an emblem of Government,
the powers of that Government are divided into three distinct and separate departments — Executive,
Legislative and Judicial — each acting in its own field, under its own authority and general powers of
the government. While the line of demarcation, by division, is easily discerned, it is at times difficult to
follow in actual cases. There is a constant overlapping of the different departments of the government
which cannot be avoided, and yet such overlapping generally results in the greater stability and
permanency of the government. It is also a statement, based upon political science, that scarcely needs
repetition, that one department overreaches its powers whenever it steps across the line of
demarcation and attempts to function within the field of another department of government under
the American flag. Under the form of government established in the Philippine Islands, one
department of the government has no power or authority to inquire into the acts of another, which
acts are performed within the discretion of the other department. It is the general duty of the
legislative branch of the government to make such laws and regulations as will effectually conserve the
peace and good order and protect the lives and the property of the citizens of the state. It is the duty
of the governor-General to take such steps as he deems wise and necessary for the purpose of
enforcing such laws. Every delay and hindrance and obstacle which prevents a strict enforcement of
laws necessarily tends to jeopardize public interest and the safety of the whole people.
(Barcelon vs. Baker and Thompson, 5 Phil., 87.)
The different departments of the government are coordinate, coequal and each functions
independently, uncontrolled and uncontrollable by the other. To that statement, however, there exist
exceptions. For example, the executive department of the government may annul and set aside acts of
the legislative department of the government under its power of veto. So may the legislative
department of the government annul and set aside actions of the executive department of the
government by repealing or amending laws. So likewise the judicial department of the government
may annul and set aside acts of the legislative department of the government when such acts are
contrary to the fundamental laws of the state or beyond the powers of the legislative department. But
in every case, where one department, as above indicated, to any extent attempts to control the effects
of acts of the other department or departments, it is acting under its own power and within its own
department.

The Constitution of the United States as well as the Constitution of each of the states of the United
provide that the government shall be divided into three departments: executive, legislative, and
judicial. George Washington, who was the President of the Constitutional Convention which adopted
the United States Constitution, in a letter written to his friend Lafayette in 1788, referring to the
complete separation of the powers of the government, said: "These powers are so distributed among
the legislative, executive, and judicial branches, in which the powers of the government are arranged
that it can never be in danger of denigrating into a monarchy, an oligarchy, an aristocracy, or any other
despotic form of government as long as there shall remain any virtue in the body of the people."

Mr. Thomas Jefferson, who has been quoted on questions relating to the meaning, force and
application of the provisions of the Constitution of the United States perhaps more than any other one
person, said: "The great principle established by the Constitution of the United States which was never
before fully established, was the separation of the delegated power into the hands of the executive,
the legislative department, and the judiciary. This is our system of check and balances which makes
ours a 'government of laws and not of men.'" On another occasion Mr. Thomas Jefferson said, in
discussing the necessity of limiting the power of government: "When it comes to a question of power
— trust no man, bind him down from mischief, by the strong chains of the Constitution."

By the well known distribution of the powers of government among the executive, legislative, and
judicial departments by the constitution, there was provided that marvelous scheme of check and
balances which has been the wonder and admiration of the statesmen, diplomats, and jurists in every
part of the civilized world.

The balance of the powers of government provided for in the constitution as well as in the charter of
the Philippine Government was not the result of chance. The various parts did not fall into place merely
through the vicissitudes of circumstance. They were devised by careful foresight; each in a measure
dependent upon the others and not possessed of so much independence as to give freedom and
courage in the exercise of their functions. Each was to move within its respective spheres as the bodies
of the celestial system march along the pathways of the heaven. It is a fundamental rule of
constitutional law that no department of government has power to perform nor to assist in performing
the functions of another.

The executive department is limited to the execution of valid laws adopted by the legislative
department of the government. The legislative department is limited to the enactment of laws and to
the investigation of facts necessary for wise legislation. The judicial department of the government is
limited to the administration of justice and the interpretation of laws. In case of differences between
the executive and legislative departments as to their respective powers, it has long since been
conceded that the Supreme Court shall act as an umpire. (Marbury vs. Madison [1803], 1 Cranch [U.S.]
137; Rice vs. Austin, 19 Minn., 74; Luther vs. Borden, 7 Howard [U.S.], 44; Martin vs. Mott, 12 Wheat.
[U. S.], 19.)
No government, past or present, has more carefully and watchfully guarded and protected, by law, the
individual rights of life and property of its citizens than the governments under the American flag. Each
of the three departments of the government has had separate and distinct functions to perform in this
great labor. The history of the United States, covering nearly a century and a half, discloses the fact
that each department has performed its part well. No one department of the government can or ever
has claimed, within its discretionary power, a greater zeal than the others in its desire to promote the
welfare of the individual citizens, entities or corporations. They are all joined together in their
respective spheres, harmoniously working to maintain good government, peace and order, to the end
that the rights of each citizen be equally protected. No one department can claim that it has a
monopoly of these benign purposes of the government. Each department has an exclusive field within
which it can perform its part within certain legal and discretionary limits. No other department can
claim a right to enter these legal and discretionary limits and assume to act there. No presumption of
an abuse of these legal and discretionary powers by one department will be considered or entertained
by another. Generally such conduct on the part of one department, instead of tending to conserve the
highest interest of the government and its citizens and the rights of the people, would directly tend to
destroy the confidence of the people in the government and to undermine the very foundations of the
government itself. (Barcelon vs. Baker and Thompson, 5 Phil., 87, 115; Forbes vs. Chuoco Tiaco and
Crossfield, 16 Phil., 534.)

The Government of the Philippine Islands, like the Government of the United States, is based upon the
fundamental principle of the separation of the executive, legislative, and judicial powers. Subject only
to the exceptions especially established by the organic act, neither of the great department of the
government may validly exercise any of the powers conferred upon either of the others. In the case
of Abueva vs. Wood (45 Phil., 612) it was said: "The duties of each department are well defined and
limited to certain filed of governmental operation." Each department exercises functions as
independent of each other as the Federal or state governments of the Union. It was not intended by
the framers of the theory of our government that the duties which had been assigned to the executive
should be performed by the legislative, nor that the duties which had been assigned to each of them
should be performed and directed by the judicial department. (Sinking Fund Cases, 99 U. S., 700, 718;
Clough vs. Curtis, 134 U. S., 361; Abueva vs. Wood, supra.)

No well organized government or business even can be well managed if one department can enter
upon the field of another and attempt to administer or interfere in the administration of the other.
(Abueva vs. Wood, supra; Barcelon vs. Baker and Thompson, 5 Phil., 87; U. S. vs. Bull, 15 Phil., 7, 27.)

In the case of Kilbourne vs. Thompson (103 U. S., 168) it was said: "It is also essential to the successful
working of the system, that the persons entrusted with power in any one of these branches shall not
be permitted to encroach upon the powers confided to the others, but that each shall by the law of its
creation be limited to the exercise of the powers appropriate to its own department and no other."

Section 17 of the Administrative Code of 1917 (Act No. 2711) provides: "The executive, legislative, and
judicial powers of the Philippine Government are distributed, respectively, among the executive,
legislative, and judicial branches, severally exercising the functions and powers conferred on them by
law.

Each department of the government has an exclusive field within which it can perform its part within
certain discretionary limits. No other department can claim a right to enter these discretionary limits
and assume to act there. (Barcelon vs. Baker and Thompson, supra; U. S. vs. Bull, supra;
Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil., 534; Borromeo vs. Mariano, 41 Phil., 322;
Severino vs. Governor-General and Provincial Board of Occidental Negros, 16 Phil., 366; Province of
Tarlac vs. Gale, 26 Phil., 338.)
In the case of United States vs. Ang Tang Ho (43 Phil., 1) this court said that the legislature has no
authority to execute or construe the law, the executive has no authority to make or construe the law.
Subject to the constitution only, the power of each branch is supreme within its own jurisdiction, and it
is for the judiciary only to say when an act of the legislature is or is not constitutional. It is beyond the
power of any branch of the Government of the Philippine Islands to exercise its functions in any other
way than that prescribed by the Organic Law or by local laws which conform to the Organic Law.
(Alejandrino vs. Quezon, 46 Phil., 83, 96.)

It is not within the power of the Philippine Legislature to enact laws which either expressly or impliedly
diminish the authority conferred by an Act of Congress on the Chief Executive. (Concepcion vs. Paredes,
42 Phil., 599.)

From all of the foregoing, the conclusion is inevitable, that if any given act of the Philippine Legislature
does not, by its nature, pertain to the law-making function, but is either executive or judicial in
character, and does not fall within any of the express exceptions established by the Organic Act, such
an act is ultra vires and therefore null and void. (See, for a discussion of the powers of the executive
department of the Government, the opinion by the late Chief Justice Cayetano S. Arellano in the case
of In re Patterson, 1 Phil., 93.)

POWERS OF THE LEGISLATIVE DEPARTMENT OF GOVERNMENTS UNDER THE AMERICAN FLAG

Some one has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments of the same are
limited and confined within the four walls of the constitution or the charter, and each department can
only exercise such powers as are expressly given and such other powers as are necessarily implied from
the given powers. The constitution is the shore of legislative authority against which the waves of
legislative enactment may dash, but over which they cannot leap.

Mr. Justice Cooley, one of the greatest expounders of constitutional law, said: "The legislative power,
we understand, to be the authority, under the constitution, to make laws and to alter and repeal
them."

Mr. Biddel, an eminent lawyer, said: "The legislature has no other duty nor power than to make laws.
After a law has been enacted, that department has no further power over the subject except to amend
or repeal it. It can neither adjudge the law nor execute it. All power of that department is ended."

Mr. James Wilson, who was a member of the convention which adopted the Constitution of the United
States, and later one of the first members of the Supreme Court of the United States, and one of the
very ablest of the members of that great body, in discussing the question of the powers of the
legislative department of the government, said, quoting from an able English statesman: "England can
never be ruined but by a Parliament (legislative department), which demonstrates the danger of
allowing to the legislative department any other (power) than strictly legislative powers."

Even the Justice of the Supreme Court joined in a letter addressed to President Washington upon the
general subject of the separation of the departments of government, and insisted upon a scrupulous
and undeviated maintenance of the separation of the departments.

Mr. Thomas Jefferson, James Madison, and Alexander Hamilton, who were among the great
expounders of the Constitution, wrote earnestly upon the question of the separation of the
departments of government, and, with many others, united in protesting against tolerating the claim of
the legislative department to exercise any other than purely legislative power.
It has been said in many of the leading cases decided by the highest courts of record that "the power of
the legislature is the power to legislate only and to make such investigations as are necessary for that
purpose."

Under a constitutional form of government it is believed that all will agree that the concentration of
power in the legislative department of government or in any one of the other departments will
inevitably result in despotism.

Mr. Bryce, who for many years was a close student of the system of government under the American
flag, said: "A legislature is a legislature and nothing more." Mr. Woodrow Wilson, in discussing the
powers of the executive and legislative departments of government, said: "The power of the legislative
department is to enact laws, while it is the duty of the President to see that the laws of Congress are
failthfully executed."

A careful reading of the debates, in the Constitutional Convention, by the greatest statesmen and
diplomats at that time shows clearly that one of their greatest concerns was the limitation upon the
powers of the executive and legislative departments. A reading of the Constitution itself adopted after
a long discussion shows clearly that its members intended to expressly limit the powers of said
departments. In the enumeration of the powers of the three departments the phrase that each "shall"
or "shall not" do a particular thing is frequently found. No general unlimited power is found. Experience
had shown that there was need of curbing the legislative body in order to prevent a violation of the
citizens' right of liberty and property. The members of the Constitution Convention made an effort to
strike at the very root of the evils which the people of the state had suffered by the madness of a
sovereign legislative body.

James Madison, a member of the Convention, and later President of the United States, said:
"Experience had proved a tendency in our governments (state governments) to throw all power into
the legislative vortex. The executives of the states are, in general, little more than ciphers; the
legislature, omnipotent. If no effectual check be devised in restraining the instability and
encroachment of the latter, a revolution of some kind or other would be inevitable."

Gouverneur Morris, one of the great statesmen of his time, said that "he concurred in thinking the
public liberty in greater danger from legislative usurpation than from any other source." (July 21,
1787.)

James Madison, in September, 1787, in speaking of the encroachments of the legislative department,
said: "The experience of the states had demonstrated that their checks are insufficient. The legislative
department is everywhere extending the spheres of its activity and draining all power into its impetuous
vortex. I have appealed to experience for the truth of what I advance on this subject."

Mr. James Wilson, a member of the Constitutional Convention and one of the first members of the
Supreme Court of the United States, said on the 16th day of June, 1787: "If the legislative authority be
not restrained there can be neither liberty nor stability."

The great statesmen who were among the members of the Constitutional Convention were as
solicitous about the limitations of the executive department of the government, as they were
concerning the limitations of the legislative department. They were exceedingly cautious in defining
the powers of each of said departments, and so far as their knowledge and experience aided them
their work was complete.

POWERS OF THE PHILIPPINES LEGISLATURE, GRANTED BY THE PHILIPPINE CHARTER

Turning to the Act of Congress of August 29, 1916, commonly known as the "Jones Law," for the
purpose of ascertaining what power or authority to legislate was granted to the Philippine Legislature,
we find that, while the legislature was given "general legislative power" (secs. 7, 8, 12), "all laws
enacted by the Philippine Legislature shall be reported to the Congress of the United States, which
reserved the power and authority to annul the same." Not only must all laws enacted by the Philippine
Legislature be reported to Congress for approval but certain laws, in addition to the requirement that
they must be submitted to Congress, must be submitted to the President of the United States for
approval (secs. 9, 10, and 19). In other words, no act of the Philippine Legislature can have the force
and effect of a law until it has been either expressly or tacitly approved either by the Congress of the
United Statesor by the President. Neither will it be contended that the express or tacit approval by the
Congress of the United States or by the President, of a law otherwise illegal and void, will render such
law valid if, in fact, it was adopted without power or authority.

THE AUTHORITY OF THE PHILIPPINE LEGISLATURE TO ENACT LAWS IS WHOLLY A DELEGATED

AUTHORITY

The only legislative authority possessed by the Philippine Legislature is a delegated authority. The only
power or authority to legislate is granted by the Congress of the United States by the charter (Jones
Law; Act of July 2, 1902). To ascertain the power of the Philippine Legislature, therefore, an
examination of its charter must be made.

It is argued that when either the President or the Congress of the United States gives express or tacit
approval to an Act of the Philippine Legislature, that such an act thereby becomes a valid subsisting law.
That argument is tenable, except when such act is beyond the powers granted to the Legislature. The
approval by the President or Congress of an act of the Philippine Legislature does not render such an
act legal if, in fact, the same is beyond the powers of the Legislature or contrary to the fundamental
law of the land. If the provisions of the act extend beyond the powers of the Legislature, then certainly
it cannot be contended that the same is a valid and legal act even though the same has been expressly
or tacitly approved by the President or Congress, unless the same can be considered an act of the
congress of the United States and then only, when the same is within the power and authority of
Congress. Such act of the Philippine Legislature, even with such approval, can be no more valid and
legal than if the Congress of the United States itself had adopted a law which was beyond its power.
The legality of such act, notwithstanding the approval, may be decided in a proper proceeding for the
purpose of determining whether its provisions are beyond the powers of the legislative department of
the government.

The general legislative powers granted to the Philippine Legislature and found in sections 6, 7, 8, and
12 of the Act of August 29, 1916, and those provisions of the Act of July 2, 1902, which have not been
repealed. Section 6 provides that the laws now in force in the Philippines shall continue in force, except
as altered, amended or modified herein, until altered, amended or repealed by the legislative authority
herein provided by the Act of Congress.

Section 7 provides that the legislative authority herein provided shall have power, when not
inconsistent with this Act, by due enactment, to amend, alter, modify or repeal any law, civil or criminal,
continued in force by this Act, as it may from time to time see fit.

Section 8 provides that general legislative power, except as otherwise herein provided, is hereby
granted to the Philippine Legislature, authorized by this Act. Section 12, among other things, provides
that general legislative power in the Philippines, except as herein otherwise provided, shall be vested in
the Legislature, which shall consist of two houses, one the Senate and the other, the House of
Representatives, and the two houses shall be designated "the Philippine Legislature."
From a reading of said sections 6, 7, 8, and 12 we have some difficulty in determining why it was
necessary to repeat practically the same idea concerning the legislative authority in said sections. The
provisions of sections 6, 7, and 12 add nothing to the provisions of section 8 which granted general
legislative power to the Philippine Legislature.

We have read said Act of Congress of August 29, 1916, in vain, to find the slightest reference to the
power of the Philippine Legislature to participate in the slightest degree, by legislation or otherwise, in
the execution of its laws even after they have been approved expressly or tacitly by the President or
Congress, unless such power is found in that provision of the law, and then only in the Philippine
Senate, which gives that branch of the Legislature the right to participate, with its advice and consent,
in the appointment of certain officers the Government. But even that provision can scarcely be
construed to mean that the Senate can participate in the execution of the laws.

THE ONLY SOVEREIGN IN THE PHILIPPINE ISLANDS IS THE SOVEREIGNTY OF THE UNITED STATES

The people of the Philippine Islands exercise in all matter of government a delegated authority. The
executive, the legislative, and the judicial departments of the government are merely exercising a
delegated authority. These departments, unlike the departments of Government in the United States
under the Constitution, have received no authority from the people of the Philippine Islands. In the
absence of Congressional authority, these departments have no authority or power. They are each
creatures of the Congress of the United States. Like all agents, they must act within the authority given.
The title of acts of the Philippine Legislature, by which it assumes to enact laws "by its own authority" is
an assumption of authority not possessed in fact nor in law. It acts by authority of the Congress of the
United States and in the enactment of laws that authority should be recognized.

RIGHT OF PHILIPPINE LEGISLATURE TO APPOINT COMMITTEES TO MAKE INVESTIGATIONS IN ORDER TO

ENACT WISE LEGISLATION.

In addition to the power to enact, the Philippine Legislature has the inherent power on its own account,
or through committees appointed by it, to inquire into the general condition of the government, the
administration of governmental affairs and the general welfare of the people, to obtain information to
aid it in adopting wise legislation. When such investigation is terminated and laws are adopted, then
the authority of the legislature is ended and the execution of such laws is turned over to the Executive
Department of the Government.

THE POWER AND AUTHORITY OF THE EXECUTIVE UNDER THE CHARTER OF THE PHILIPPINE
GOVERNMENT

From a further examination of the Act of Congress of August 29, 1916, in relation with the Act of
Congress of July 2, 1902, we find a depository of power and authority created for the express purpose
of executing the laws of the Philippines. (Section 21 of said Act (August 29, 1916) provides "that the
supreme executive power shall be vested in an executive officer whose official title shall be the
Governor-General of the Philippine Islands." It occurs to us that when the Congress of the United
States used the words "supreme executive power" that the phrase was used after a careful
consideration of its meaning. It was not a haphazard use of the term. The use of that phrase was
carefully considered by the Congress of the United States when the Jones Bill was under consideration.
In addition to the enumerated powers conferred upon the "supreme executive power," we find that he
is held responsible for the faithful execution of the laws of the Philippine Islands." The language of
section 22 is "he shall be responsible for the faithful execution of the laws of the Philippine Islands."
There is nothing in any of the provisions of the Jones Law which authorizes or permits the "supreme
executive power" to divide its responsibility for the faithful execution of the laws of the Philippine
Islands with any other department, legislative or judicial, or with any of the bureaus of the Government.
All executive functions of the Philippine Government are expressly under the direction and control of
the Governor-General.

Outside of the provisions for the internal regulation and control of the affairs of the legislature, its rules
and regulations in its relation with the confirmation of certain appointees by the Governor-General,
there is not a syllable, a word, a phrase, a line, nor a paragraph in the Jones Law which permits the
legislature to participate in the execution of its general or special laws.

It is a fundamental maxim of political science, recognized and carried into effect in the Federal
Constitution and the constitutions of all the states of the Union, that good government and the
protection of rights require that the legislative, executive, and the judicial powers should not be
confided to the same person or body, but should be apportioned to separate and mutually
independent departments of the government. (Black's Constitutional Law, p. 83.)

The idea of an apportionment of the powers of government, and of their separation into three
coordinate departments is not a modern invention of political science. It was suggested by Aristotle in
his treatise on "Politics." and was not unfamiliar to the more advanced of the medieval jurists. But the
importance of this division of powers, with the principle of classification, were never fully apprehended,
in theory, until Montesquieu gave to the world his great work "Spirit of the Laws." Since then his
analysis of the various powers of the state has formed part of the accepted political doctrine of the
civilized world.

All American constitutions, state and Federal, provide for the separation of the three great powers of
government, and their apportionment to distinct and independent departments of government.

The principle of the separation of the three departments of the government imposes upon each the
limitation that it must not usurp the powers nor encroach upon the jurisdiction of either of the others.

The people of the United States ordained in their constitution that "all legislative powers herein
granted shall be vested in a Congress of the United States." The people also declared that "the
executive power shall be vested in a President" and that "the judicial power of the United States shall
be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain
and establish." It is made clear therefore that the power to legislate is given to the Congress and that
the President and the courts are prohibited from making laws. The legislature cannot lawfully usurp
any of the functions granted by the Constitution to the executive department. The true meaning of the
constitutional division of governmental powers is simply that the whole power of one of the three
departments of government shall not be exercised by the same hand which possesses the whole power
of either of the other departments.

Mr. Baker, who was Secretary of War of the United States at the time the Jones Law was adopted, and
who perhaps was more familiar with its meaning and purpose than any other one person, wrote a
letter to Governor-General Harrison, in which he said in general terms that "it would seem to be the
part of wisdom for the President and the Governor-General to admit of no encroachment on those
powers and placed in their hands."

Energy and constancy in the executive department of the government is a leading element in the
definition of good government. They are essential to the protection of the people of the state against
foreign attack; they are not les essential to the steady administration of the law; to the protection of
property against those irregular and high-handed combinations which sometimes interrupt the
ordinary course of justice and administration of the law; to the security of liberty against the
enterprises and assaults of ambition, of faction, and of anarchy. A feeble executive in the
administration of his department implies a feeble execution of the government. A feeble execution is
but another phrase for a bad execution; and a government ill executed, whatever it may be in theory,
must be, in practice, a bad government. Delay in the administration of the laws will lead to injustice,
dissensions, turmoils, and disorder.

While the legislature has authority to adopt laws and the courts are possessed with power to construe
them, yet finally in its largest sense, the administration of a government and the execution of the laws
so adopted and construed is finally left in the hands of the executive department of the government.

FORMS OF GOVERNMENT WHICH HAVE EXISTED IN THE PHILIPPINE ISLANDS SINCE AMERICAN
OCCUPATION

Since the 13th day of August, 1898, there have existed in the Philippines several district forms of
Government.

First. A Military Government. — From the 13th day of August, 1898, until the 1st day of September,
1900, there existed a Military Government in the Philippine Islands under the authority of the
President of the United States. That Government exercised all of the powers of government, including
executive, legislative, and judicial.

Second. Divided Military and Civil Government. — From the 1st day of September, 1900, to July 4, 1901,
the legislative department of the Government was transferred from the Military Governor to the
United States Philippine Commission, to be thereafter exercised by said Commission in the place and
stead of the Military Government, under such rules and regulations as the Secretary of War might
prescribe, until the establishment of the Civil Central Government for the Islands, or until Congress
should otherwise provide. During that period the executive authority was vested in the Military
Governor while the legislative authority was vested in the Philippine Commission. (See Instructions of
the President of the United States to the United States Philippine Commission, April 7, 1900.) On the
4th day of July, 1901, the executive power theretofore possessed by the Military Governor was
transferred to the President of the United States Philippine Commission.

Third. Civil Government. — From the 4th day of July, 1901, to the 16th day of October, 1907, the
executive and legislative powers of the Philippine Government were possessed by the United States
Philippine Commission. The President of the Commission not only possessed and exercised the
executive power of the Government but sat as a member of the United States Philippine Commission
as a member of the legislative department of the Government.

Fourth. Legislative Department of the Government Divided into Two Branches. — On the 16th day of
October, 1907, the Legislative Department of the Government was divided into two branches — the
United States Philippine Commission, and the Philippine Assembly — which form continued up to the
16th day of October, 1916. The Governor-General during that period not only possessed the executive
powers of the Government, but acted as a member of the branch of the legislative department, known
as the United States Philippine Commission.

Fifth. Legislative Department of the Government Separated from the Executive Department. — From
the 16th day of October, 1916, until the present time, by virtue of the provisions of the Jones Law, the
executive and legislative departments of the Government have been separated, each constituting a
separate and distinct department of government; the first, represented by the Governor-General and
the second, by the Philippine Legislature.

In each of the separate forms of government above mentioned there existed the executive, legislative
and judicial powers fully established and recognized by the only authority for the existence of said
Government, — the Government of the United States.
 DUTY OF THE GOVERNOR-GENERAL OF THE PHILIPPINES WHEN ADVISED OF ILLEGALITY OF A LAW —
HE MAY DISREGARD IT OR FORMULATE A PROPER ISSUE TO BE PRESENTED TO THE COURT
CONCERNING ITS LEGALITY.

It is the sworn duty of the Governor-General of the Philippines to execute the laws. That duty, however,
does not require him to execute an illegal act of the Legislature. When he is advised by his legal
department that a certain act, or any part thereof, of the Legislature is illegal and void, he may do one
of two things: (a) He may disregard it and refuse to executive it, or (b) he may formulate an issue upon
the alleged illegality and have that question presented to the courts for solution. He is acting within his
powers whichever to these courses he elects to take. To disregard an illegal and void act of the
Legislature is neither tyranny nor a violation of his sworn duty. It would be a violation of his sworn duty
to enforce or permit the enforcement of an illegal act.

RIGHT OF DIFFERENT DEPARTMENTS TO CONSTRUE POWERS GRANTED UNDER THE CONSTITUTION OR

CHARTER

While in many jurisdictions a provisions exists by virtue of which the executive and legislative
departments may, in case of doubt as to their powers, refer the question to the courts for decision, no
such provision exists in the Philippines. In the absence of such provision it becomes necessary
therefore in the first instance, when a duty is to be performed, for said departments to pass upon the
question of their power to act. Every department of government invested with constitutional or
charter powers must, in many instances, be the judge of their powers, or they could not act. Such
interpretation of their powers is not exclusive. The parties aggrieved may resort to the courts for a
judicial interpretation. (Cooley's Constitutional Limitations, 73.)

EXCLUSIVE DUTY OF THE GOVERNOR-GENERAL TO PROTECT THE PROPERTY OF THE GOVERNMENT

It is the duty of the Governor-General, as the supreme executive power, to protect the property of the
Government. If he, by negligence or inattention to that responsibility, permits the property of the
Government to be wasted, destroyed or lost, he subjects himself to the danger of impeachment. His
responsibility is then one of great seriousness. He should not supinely disregard it. While the legislative
department of the Government may adopt laws for safeguarding and protecting the property, public
and private, it cannot intervene in the enforcement of such law. The legislative department would
thereby be taking part, not only in the enactment of laws but in the execution of the same, which is not
permitted under the American Constitution and system of laws.

WHAT HAS BEEN DONE BY LEGISLATIVE DEPARTMENT FURNISHES NO CRITERION AS TO REAL POWERS

In support of the contention that the President of the Senate and the Speaker of the house of
Representatives, under Act No. 2705 as amended by Act No. 2822, have a right to intervene in the
execution of said laws, our attention is called to many acts of legislative bodies, where such bodies
have not only enacted laws but have made provisions in the same, by which they have intervened in
their execution. The cited cases support the allegations of the respondents. Our attention is called
especially to Acts Nos. 69, 1415, 1841, 1849, 1870, 1981, 2023, 2479, 2510, 2598, 2957 and 3208 as
well as to many acts of the legislatures of different states of the Union. It is true that in each of the
various acts cited, of the Philippine Legislature, a provision is made for the appointment of certain
persons to assist in their execution.

No question has ever been raised concerning the powers of the Legislature in respect of said acts. The
mere fact, however, that the legality of said acts has never been questioned and their legality has been
passed sub silentio, does not create a conclusive presumption that they were in fact adopted within
the powers of the legislative department of the Government. The fact that a statute has been accepted
as valid, and invoked and applied for many years in cases where its validity was not raised or passed on,
does not prevent a court from later passing on its validity where the question is properly raised and
presented. (McGirr vs. Hamilton and Abreu, 30 Phil., 563, and cases cited.)

LEGALITY OF THAT PROVISION OF ACT NO. 2705, AS AMENDED BY ACT NO. 2822, CREATING THE
"VOTING COMMITTEE"

In addition to the contention that the Legislature, by virtue of the provisions of Acts Nos. 2705 and
2822, not only attempted to legislate but to participate in the execution of its laws, there is still
another objection of the legality of that provision of said acts which creates the "Voting Committee."
One of the inhibitions against the powers of the Philippine Legislature is found in one of the
subparagraphs of section 3 of the Jones Law. Said subparagraph provides: "That no bill (public or
private) which may be enacted into law shall embrace more than one subject, and that subject shall be
expressed in the title of the bill." The title of Act No. 2705 reads: "An Act to create the National Coal
Company." The title of Act No. 2822 is: "An Act to amend Certain Sections of Act No. 2705, Entitled 'An
Act to create the National Coal Company.'" Act No. 2822 does not amend that provision of Act No.
2705 relating to the "Voting Committee." The inhibition, therefore, of the Jones Law need not be
discussed with reference to the provisions of Act No. 2822.

Many of the states of the Union have adopted similar constitutional provisions. The purpose of this
legislative restriction and the evils sought to be remedied thereby are clearly stated by Mr. Sutherland,
now an Associate Justice of the Supreme Court of the United States, in his valuable work on Statutory
Construction. In section 111 he says that:

In the construction and application of this constitutional restriction the courts have kept steadily in
view the correction of the mischief against which it was aimed. The object is to prevent the practice,
which was common in all legislative bodies where no such restriction existed, of embracing in the same
bill incongruous matters having no relation to each other, or to the subject specified in the title, by
which measures were often adopted without attracting attention. Such distinct subjects represented
diverse interests, and were combined in order to unite the members of the legislature who favor either
in support of all. These combinations were corruptive of the legislature and dangerous to the State.
Such omnibus bills sometimes included more than a hundred sections on as many different subjects,
with a title appropriate to the first section, 'and for other purposes.

The failure to indicate in the title of the bill the object intended to be accomplished by the legislation
often resulted in members voting ignorantly for measures which they would not knowingly have
approved. And not only were legislators thus misled, but the public also; so that legislative provisions
were stealthily pushed through in the closing hours of a session, which, having no merit to commend
them, would have been made odious by popular discussion and remonstrance if their pendency had
been reasonably announced. The constitutional clause under discussion is intended to correct these
evils; to prevent such corrupting aggregations of incongruous measures by confining each act to one
subject or object; to prevent surprise and inadvertence by requiring that subject or object to be
expressed in the title.

In the case of Walker vs. State (49 Ala., 329), the Supreme Court of Alabama stated the proposition as
follows — citing and quoting from Cooley's Constitutional Limitations, p. 143:

The object sought to be accomplished and the mischief proposed to be remedied by this provision are
will known. Legislative assemblies for the dispatch of business often pass bills by their titles only,
without requiring them to be read. A specious title sometimes covered legislation which, if its real
character had been disclosed, would not have commanded assent. To prevent surprise and fraud on
the legislature is one of the purposes this provision was intended to accomplish. Before the adoption of
this provision, the title of a statute was often no indication of its subject or contents.

An evil this constitutional requirement was intended to correct was the blending in one and the same
statute of such things as were diverse in their nature, and were connected only to combine in favor of
all the advocates of each, thus often securing the passage of several measures, no one of which could
have succeeded on its own merits. Mr. Cooley thus sums up his review of the authorities defining the
objects of this provision: "It may, therefore, be assumed as settled, that the purpose of this provision
was: First, to prevent hodge-podge, or log-rolling legislation; second, to prevent surprise or fraud upon
the legislature, by means of provisions in bills of which the titles gave no information, and which might
therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the
people, through such publication of legislative proceedings as is usually made, of the subjects of
legislation that are being considered, in order that they may have opportunity of being heard thereon,
by petition or otherwise, if they shall so desire.'

"The practice," says the Supreme Court of Missouri, "of comprising in one bill subjects of a diverse and
antagonistic nature, in order to combine in its support members who were in favor of particular
measures, but neither of which measures could command the requisite majority on its own merits, was
found to be not only a corrupting influence in the Legislature itself, but destructive of the best interests
of the State. But this was not more detrimental than that other pernicious practice by which, though
dexterous and unscrupulous management, designing men inserted clauses in the bodies of bills, of the
true meaning of which the titles gave no indications, and by skillful maneuvering urged them on to
their passage. These things led to fraud, surprise, and injury, and it was found necessary to apply a
corrective in the share of a constitutional provision." (City of St. Louis vs. Tiefel, 42 Mo., 578, 590.)

The authorities are to all intents uniform that this constitutional requirement is mandatory and not
directory. Sutherland on Statutory Construction, section 112, states the rule correctly as follows:

The efficiency of this constitutional remedy to cure the evil and mischief which has been pointed out,
depends on judicial enforcement; on this constitutional injunction being regarded as mandatory, and
compliance with it essential to the validity of legislation. The mischief existed notwithstanding the
sworn official obligation of legislators; it might be expected to continue notwithstanding that obligation
is formulated and emphasized in this constitutional injunction, if it be construed as addressed
exclusively to them, and only directory. It would, in a general sense, be a dangerous doctrine to
announce that any of the provisions of the constitution may be obeyed or disregarded at the mere will
or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the
framers of that instrument. It would seem to be a lowering of the proper dignity of the fundamental
law to say that it descends to prescribing rules of order in unessential matters which may be followed
or disregarded at pleasure. The fact is this: That whatever constitutional provision can be looked upon
as directory merely is very likely to be treated by the legislature as if it was devoid of moral obligation,
and to be therefore habitually disregarded.

In the case of Walker vs. State, supra, the court said:

It is the settled law of this court, founded on reasoning which seems to us unanswerable, that this
provision of the constitution is not a mere rule of legislative procedure, directory to the general
assembly, but that it is mandatory, and it is the duty of courts to declare void any statute not
conforming to it.

Justice Cooley, in his work on Constitutional Limitations (pp. 179, 180) states that our courts have held,
without exception, that such constitutional provision is mandatory. (Central Capiz vs. Ramirez, 40 Phil.,
883.)
Inasmuch as the body of said Act contains a provision to which no reference is made in the title, in view
of the well established authorities, we are forced to the conclusion that, that provision creating the
"Voting Committee" is illegal. That illegality, however, is one which may be separated from the rest of
the act without affecting the legality of the other provisions.

THE "VOTING COMMITTEE" AS PUBLIC OFFICERS OF THE GOVERNMENT

It is argued most earnestly by the petitioner, and denied with equal earnestness by the respondents,
that the President of the Senate and the Speaker of the House of Representatives, acting as members
of the "Voting Committee" in participating in voting the stock of the National Coal Company, were
acting as public officials of the government and that the legislature is without authority to appoint
public officials for that purpose or to appoint public officials at all for any purpose. It is admitted by
both parties that the National Coal Company is a private corporation. It is admitted that the
Government of the Philippine Islands is a stockholder. The law provides that the Governor-General, the
President of the Senate, and the Speaker of the House of Representatives at a stockholders' meeting
shall act as a committee for the purpose of voting said stock. Does that fact make the President of the
Senate and the Speaker of the House of Representatives public officials? In the voting of the stock do
they stand in any different relation to the Government and the National Coal Company than any other
holders of stock? Are they not governed by the same laws, and by-laws of the corporation like other
stockholders?

Mr. Justice Marshall, in the case of the Bank of the United States vs. Planters' Bank of Georgia (22 U. S.,
904 [Feb. 18, 1824]), in discussing the question of the relation of the Government to private
corporation when it becomes a stockholder in a private corporation, said, among other things: "It is, we
think, a sound principle, that when a government becomes a partner in any trading company, it divests
itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of
a private citizen. Instead of communicating to the company (or corporation) its privileges and its
(sovereign) prerogatives, it descends to a level with those with whom its associates itself, and takes the
character which belongs to its associates, and to the business which is to be transacted . . . . . As a
member of a corporation, a Government never exercises its sovereignty. It acts merely as a corporator,
and exercises no other powers in the management of the affairs of the corporation, than are expressly
given by the incorporating act. The Government of the Union held shares in the old Bank of the United
States; but the privileges of the Government were not imparted by that circumstance to the bank. The
State of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its
sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that
character."

The doctrine announced by Chief Justice Marshall in that case has been followed without modification
not only by the courts but by all of the eminent authors who have written upon that particular
question. (Thompson on Corporations, vol. 1, sec. 167; Bank of Kentucky vs. Wister, 27 U. S., 318, 322;
Briscoe vs. Bank of Kentucky, 36 U. S., 256, 324; Liuisville Railway Co. vs. Letson, 43 U. S., 497, 550;
Curran vs. State of Arkansas, 56 U. S., 302; Veazie Bank vs. Fenno, 75 U. S., 533; Railroad
Co. vs. Commissioner, 103 U. S., 1, 5; Hopkins vs. Clemson College, 221 U. S., 636, 644; Putnan vs. Ruch,
56 Fed., 416; Wester Union Tel. Co. vs. Herderson, 68 Fed., 591; U. S. vs. Chesapeake & D. Canal Co.,
206 Fed., 964; Encyclopedia of the U. S. Supreme Court Rep., vol. 11, p. 225; Encyclopedia of the U. S.
Supreme Court Rep., vol. 3, p. 124; Encyclopedia of the U. S. Supreme Court Rep., vol. 4, p. 643.)

The petitioner as well as the respondents cite many cases in support of their respective contentions.
The petitioner cites the following cases:

Pratt vs. Breckinridge (112 Ky., 1); State vs. Brill (100 Minn., 499); State vs. Denny (118 Ind., 382; 4 L. R.
A., 79); State vs. Washburn (167 Mo., 680); State vs. Stanley (66 N. C., 60); Welker vs. Bledsoe (68 N. C.,
457); Howerton vs. Tate (68 N. C., 546); Myers vs. United States (272 U. S., 52; 71 Law. ed., 160);
Concepcion vs. Paredes (42 Phil., 599).

Cases cited by respondents:

The Smithsonian Institution; Mechem's Public Officers, sec. 1; Olmstead vs. Mayor (42 N. Y. Sup. Ct.,
481); United States vs. Germaine (99 U. S., 508); McArthur vs. Nelson (81 Ky., 67); Congressional
Reports, vol. II; State vs. Kennon (7 Ohio State, 562).

See also:

Walker vs. City of Cincinnati (21 Ohio State, 14; 8 Am. Rep., 24); State vs. Hocker (39 Fla., 477; 63 Am.
St. rep., 174); Butler vs. Walker (98 Ala., 358).

After a careful analysis of all of the authorities cited, it is difficult to conclude just what is the weight of
authority, in view of the decision of chief Justice Marshall quoted above. If the Government acts merely
as one of the corporators of the National Coal Company and exercises no other power in the
management of the affairs of the corporation than the one expressly given by the Incorporatory Act, it
is difficult to understand how the "Voting Committee" is acting as a public officer. It was not the
intention of the Legislature to make the President and Speaker officers of the Government. The
Legislature simply intended to add additional duties to said officers. But after all, in our opinion, the
fact that the Legislature enacted the law and at the same time provided that, through the President
and Speaker, it (the Legislature) should assist in the execution of the same, is sufficient to nullify that
provision. It is a matter of no importance in what capacity they acted. The Legislature had no authority
to take part in the execution of the particular law.

THE RIGHT OF THE COURT OF DECIDE THE QUESTION, WHAT ARE THE RESPECTIVE POWERS OF THE
DIFFERENT DEPARTMENTS OF GOVERNMENT.

It is conceded by all of the eminent authorities upon constitutional law that the courts have authority
to finally determine what are the respective powers of the different departments of government.

The question of the validity of every statute is first determined by the legislative department of the
Government, and the courts will resolve every presumption in favor of its validity. Courts are not
justified in adjudging a statute invalid in the face of the conclusions of the legislature, when the
question of its validity is at all doubtful. The courts will assume that the validity of a statute was fully
considered by the legislature when adopted. Courts will not presume a statute invalid unless it clearly
appears that it falls within some of the inhibitions of the fundamental laws of the state. The wisdom or
advisability of a particular statute is not a question for the courts to determine. If a particular statute is
within the constitutional power of the legislature to enact, it should be sustained whether the courts
agree or not in the wisdom of its enactment. If the statute covers subject not authorized by the
fundamental laws of the land, or by the constitution, them the courts are not only authorized but are
justified in pronouncing the same illegal and void, no matter how wise or beneficent such legislation
may seem to be. Courts are not justified in measuring their opinions with the opinion of the legislative
department of the Government, as expressed in statutes, upon questions of the wisdom, justice and
advisability of a particular law. In exercising the high authority conferred upon the courts to pronounce
valid or invalid a particular statute, they are only the administrators of the public will, as expressed in
the fundamental law of the land. If an act of the legislature is to be held illegal, it is not because the
judges have any control over the legislative power, but because the act is forbidden by the
fundamental law of the land and because the will of the people, as declared in such fundamental law,
is paramount and must be obeyed, even by the legislature. In pronouncing a statute illegal, the courts
are simply interpreting the meaning, force, and application of the fundamental law of the state.
(Case vs. Board of Health and Heiser, 24 Phil., 250, 251.)

The judicial department of the Government may examine every law enacted by the legislative branch
of the Government when the question is properly presented for the purpose of ascertaining:

(a) Whether or not such law came within the subject-matter upon which the legislative branch of the
Government might legislate; and

(b) Whether the provisions of such law were in harmony with the authority given the legislature.

If the judicial branch of the Government finds (a) that the legislative or executive branches of the
Government had authority to act upon the particular subject, and (b) that the particular law contained
no provisions in excess of the powers of such department and the acts of the executive were within his
powers, then that investigation, or that conclusion, conclusively terminates the investigation by the
judicial department of the Government.

SOLICITUDE OF THE GOVERNMENT OF THE UNITED STATES AND ITS REPRESENTATIVES IN THE
PHILIPPINE ISLANDS FOR THE WELFARE AND WELL BEING OF THE INHABITANTS.

No Government, past or present, has more carefully and watchfully guarded and protected, by law, the
individual rights of life and property of the citizens of the Philippine Islands than the Government of the
United States and its representatives. Each of the three departments of the Government has had
separate and distinct functions to perform in this great labor. The history of the Philippine Islands,
covering a period of more than a quarter of a century, discloses the fact that each department has
performed its part well. No one department of the Government can or ever has claimed, within its
discretionary and legal powers, a greater zeal than the others in its desire to promote the welfare of
the individual citizen. They are all joined together in their respective spheres and departments,
harmoniously working to maintain good government, peace, and order to the end that the rights of
each citizen in his life and property be equally protected. No one department can claim that it has a
monopoly of these benign purposes of the Government. Each department has an exclusive field, under
the law, within which it can perform its part, within certain discretionary limits. No other department
can claim a right to enter these discretionary and legal limits and assume to act there. No presumption
of an abuse of these discretionary powers by one department will be considered, permitted or
entertained by another. Such conduct on the part of one department, instead of tending to conserve
good government and the rights of the people, would directly tend to destroy the confidence of the
people in the Government and to undermine the very foundation of the Government itself.

CONCLUSIONS

For all of the foregoing reasons the petition for the extraordinary legal writ of quo warranto should be
granted, and that Milton E. Springer, Dalmacio Costas, and Anselmo Hilario are each illegally and
unlawfully occupying the position of members of the Board of Directors of the National Coal Company
and should be ousted and altogether excluded therefrom; that Romarico Agcaoili, H. L. Health, and
Salvador Lagdameo have been duly and legally elected as members of the Board of Directors of the
National Coal Company, and judgment is rendered that they be immediately inducted into said position,
to take charge thereof and to perform the duties incumbent upon them as members of the Board of
Directors. The demurrer is overruled. Considering the petition and demurrer in relation with the
stipulated facts, there seems to be no reason for permitting an answer to be filed. And without any
finding as to costs, it is so ordered.

AVANCEÑA, C.J., VILLAMOR and VILLA-REAL, JJ., dissenting:

Much to our regret we have to dissent from the majority whose opinion has always commanded our
respect.

In the case of National Coal Company vs. Collector of Internal Revenue (46 Phil., 583), this court said:

THE NATIONAL COAL COMPANY, A PRIVATE CORPORATION; SUBJECT TO THE PAYMENT OF INTERNAL
REVENUE UNDER THE PROVISIONS OF SECTION 1496 OF THE ADMINISTRATIVE CODE. — The National
Coal Company is a private corporation. The fact that the Government happens to be a stockholder
therein does not make it a public corporation. It is subject to all the provisions of the Corporation Law
in so far as they are not inconsistent with Act No. 2705. As a private corporation, it has no greater
powers, rights, or privileges than any other corporation which might be organized for the same
purpose under the Corporation Law. It was not the intention of the Legislature to give it a preference,
or right, or privilege over other legitimate private corporations in the mining of coal. The law made no
provision for its occupation and operation of coal-bearing lands, to the exclusion of other persons or
corporation, under proper permission. The National Coal Company being a private corporation, neither
the lessee nor the owner of the lands upon which it mined coal for the year in question, is subject to
the payment of the internal revenue duty provided for in section 1496 of the Administrative Code.

The National Coal Company, having been created and established by the Philippine Legislature for the
purpose of developing the coal industry in the Philippine Islands, in harmony with the general plan of
the Government to encourage the development of the natural resources of the country, what relation
does it bear with said Government? Is it an agency or instrumentality thereof empowered to perform
some government act or function for governmental purposes?

Agency or instrumentality is defined to be a means by which a certain act is done (2 C.J., 420; 32 C.J.,
947). So governmental agency or instrumentality may be defined as a means by which a government
acts, or by which a certain governmental act or function is performed. A governmental act is a term
sometimes used to describe an act done in pursuance of some duty imposed by the state on a person,
individual or corporate, which duty is one pertaining to the administration of government and as an
absolute obligation on a person who receives no profit or advantage peculiar to himself for its
execution (28 C.J., 753, n. 1). Naturally, when a government acts it does so for purposes of its own.
Now, what is the purpose of government? "A government does not exist in a personal sense, or as an
entity in any primary sense, for the purpose of acquiring, protecting, and enjoying property. It exists
primarily for the protection of the people in their individual rights, and it holds property not primarily
for the enjoyment of property accumulations, but as an incident to the purpose for which it exists —
that of serving the people and protecting them in their rights." (Curley vs. U. S., 130 Fed., 1, 8; 28 C.J.,
750.) "The term governmental purposes, as used in the constitution which provides that public
property taken for public purposes is exempt from taxation, means, in its most extensive sense, the
punishment for crime, for prevention of a wrong, the enforcement of a private right, or in some
manner preventing wrong from being inflicted upon the public or an individual, or redressing some
grievance, or in some way enforcing a legal right, or redressing or preventing a public individual injury.
(City of Owensboro vs. Com., 105 Ky., 344; 28 C.J., 753, n. 8).

In the light of the above definitions, let us inquire what governmental act or function does the National
Coal Company perform and for what governmental purposes.

As was stated by this court in the above cited case, "As a private corporation, it has no greater rights,
powers, or privileges than any other corporation which might be organized for the same purpose under
the Corporation Law. It was not the intention of the legislature to give it a preference, or right, or
privilege over other legitimate private corporations in the mining of coal. The law made no provision
for its occupation and operation of coal-bearing lands to the exclusion of other persons or corporations,
under proper permission." It is subject to the payment of internal revenue tax on its coal output. The
Philippine Government owns nothing in said corporation except the stock which it has purchased
therein. The National Coal Company cannot perform any governmental act, for it has not been
authorized to do so. The fact that it has been created and established for the purpose of developing
the coal industry in the Philippine Islands, in harmony with the general plan of the Government to
encourage the development of the natural resources of the country, and the fact that the Government
owns a majority of the stock thereof, are not alone sufficient to give the National Coal Company the
distinction of being an agency or instrumentality of said Government, just as the investment of
government money in any other corporation of the same nature or in a radio corporation to which it
has given a charter for the purpose of encouraging the development of radio communication in the
Islands is not by itself sufficient to make of such a corporation an agency or instrumentality of the
Government in the political and administrative sense of the term.

If the National Coal Company is a private corporation, and is not a government agency or
instrumentality, what standing has the Government in said corporation by virtue of its ownership of a
majority of its stock.

In the case of the Bank of the United States vs. Planters' Bank of Georgia (6 Law. ed., 244), Chief Justice
Marshall said:

It is, we think, a sound principle, that when a government becomes a partner in any trading company,
it divests itself, so far as concerns the transactions of that company, of its sovereign character, and
takes that of a private citizen. Instead of communicating to the company its privileges and its
prerogatives, it descends to a level with those with whom it associates itself, and takes the character
which belongs to its associates, and to the business which is to be transacted. Thus, many states of this
Union who have an interest in banks, are not usable even in their own courts; yet they never exempt
the corporation from being sued. The State of Georgia, by giving to the bank the capacity to sue and be
sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank,
and waives all the privileges of that character. As a member of a corporation, a government never
exercise its sovereignty. It acts merely as a corporator, and exercises no other power in the
management of the affairs of the corporation, than are expressly given by the incorporating act. (Bank
of the United States vs. Planters' Bank of Georgia [22-25 U.S.], 6 Law. ed., 244.)

In the case of the Bank of Kentucky vs. Wister (7 Law. ed., 323), the court, after citing the above
paragraph, added:

To which it may be added, that if a State did exercise any other power in or over a bank, or impart to it
its sovereign attributes, it would be hardly possible to distinguish the issue of the paper of such banks
from a direct issue of bills of credit; which violation of the Constitution, no doubt the State here
intended to avoid.

The Government of the Philippine Islands, as a stockholder, has a right to participate in the election of
the Directors of the National Coal Company by the exercise of its voting power. In so doing it acts
merely as a corporator with no other power than are expressly granted by the Corporation Law, and
does not exercise its sovereignty. It cannot impose its sovereign will, but it must act according to the
by-laws of the corporation. The only control it has is what is given to it by the amount of its stock.

The Government, as stockholder, has a right to appoint or designate a proxy to vote its stock in the
National Coal Company, and the Philippine Legislature has done this for it by creating in the same Act a
voting committee to be composed exclusively of the Governor-General, the President of the Senate,
and the Speaker of the House of Representatives. Now the question arises whether or not the position
of a proxy of the Government in said corporation is a public office.
An office is defined by good authority as involving a delegation to the individual of some of the
sovereign functions of government, to be exercised by him for the benefit of the public, by which it is
distinguished from employment or contract. (Mechem Pub. Off. quoted in Barnhill vs. Thompson, 122
N. C., 403, 405; 29 S. E., 720.)

The word "office" mentioned in the constitution means a position having to do with the general
government of the State (Walker vs. Cincinnati, 21 Ohio St., 145), and that same meaning must be
given to the word "office" mentioned in the Jones Law, which has the character of a constitution.

Does the committee in voting the stock of the Government perform any sovereign function of
government?

The Government participates in the management of the affairs of the National Coal Company every
time it exercises by proxy the right of voting in the election of its directors, and, according to Chief
Justice Marshall, in so doing it acts as a corporator merely and does not exercise any sovereign power.
Its proxy, in performing his duty exercises no greater power. And it cannot be otherwise, for we would
have the absurd result of an agent exercising a higher power than that of the principal in the fulfillment
of the latter's mandate. If the voting of the stock of the Government in the election of the directors of
the National Coal Company is the act, not of the Government in its sovereign capacity, but of a
corporator merely, the designation of the members of the voting committee by the Government to
vote its stock does not involved a delegation of a sovereign function of government, for the function
delegated is of a private and not of a public nature.

The case of State vs. Stanley (66 N. C., 59; 8 Am. Rep., 488), cited in the brief for the plaintiff, wherein it
was held that membership in a committee, composed of the President of the Senate and the Speaker
of the House of Representatives of the State of North Carolina, is an office, is not in point, for said
committee was entrusted with the appointment of directors and proxies in all the corporations in
which the State was a stockholder; while the committee under consideration has no other power
except to vote the stock of the Government in the National Coal Company. In that case the committee
was an appointer of directors and proxies; in this case the committee is a mere proxy.

Is the public directly benefited by the exercise of the delegated power of voting the stock of the
Government by the committee? When the committee votes the stock of the Government, as a
stockholder, the corporation and its stockholder alone are directly benefited by the act, and the public
only indirectly by way of an increased material prosperity. But this is not the kind of benefit that is
sought to be obtained by the creation of a public office. It is the benefit that is deserved from the
protection of life, liberty, property, and the pursuit of happiness.

The voting of the stock of the Government which is delegated to the committee, not being a part of the
sovereign functions of the said Government, and not being exercised for the direct benefit of the
public, membership therein is not a public office.

Let us now examine into the question whether or not the designation of the President of the Senate
and the Speaker of the House of Representatives, as ex-officio members of said committee, by section
4 of Act No. 2705, as amended by Act No. 2822, is constitutional, and therefore valid.

If the membership in the voting committee is not a public office, the designation by the Philippine
Legislature of its own members as members ex-oficio thereof is not in violation of the principle of
separation of powers. It will not be denied that the power of appointment to certain offices vested in
the Governor-General by the Jones Law refers only to public executive office; that his power of
supervision and control is limited to public executive functions, and that the responsibility imposed
upon him for the faithful execution of the laws refers only to laws of public nature. Membership in the
voting committee, not being a public office, the Governor-General has no power to appoint its
members; the voting of the stock of the Government not being a public executive function, he has no
supervision and control over it; and the law creating the National Coal Company and designating a
voting committee not being a public law, he is not charged with the responsibility of executing it.
Therefore, in creating the voting committee and designating the President of the Senate and the
Speaker of the House of Representatives as ex-officio members thereof the Philippine Legislature did
not encroach upon any of the powers of the Governor-General.

The contention that the Legislature cannot execute its own laws, is contrary to the congressional
interpretation expressed on various occasions, specially in the case of "The Smithsonian Institution." In
incorporating it, the Congress has provided for its management "by a Board of Regents" named the
Regent of the Smithsonian Institution, to be composed of the Vice-President, the Chief Justice of the
United States, and three members of the Senate and three members of the House of Representatives;
together with six other persons, other than members of the Congress, two of whom shall be resident
of the City of Washington; and the other four shall be inhabitants of same State, but no two of them in
the same State" (9 Fed. St. An., sec. 588 [a]). The members of the Senate were to be appointed by the
President thereof; and the member of the House, by the Speaker thereof. Granting, for the sake of
argument, that membership in the voting committee is a public office, does the designation of the
President of the Senate and of the Speaker of the House of Representatives as ex-officio members of
the said committee an encroachment upon the power of appointment to office vested in the
Governor-General.

No challenge seems to have been made to the power of the Philippine Legislature to designate the
Governor-General or any other executive officer to serve on said voting committee or any public office,
and a challenge of that nature, if made at all, will find no support in the authorities (12 C.J., 837).

What is vigorously attacked is the power of the Legislature to designate any of its members to serve on
said voting committee, the contention being that the exercise of such power is a violation of the
principle of separation of powers and an encroachment upon the power of appointment to office
vested in the Governor-General by the Jones Law.

By some authorities the power of appointment to office is regarded as per se an executive function,
which, therefore, may not be exercised, vested, or controlled by the legislature except in so far as it is a
necessary incident to the exercise of the legislative power or is vested by the constitution in the
legislature. By the great weight of authority, however, the power of appointment is held not to be per
se an executive function, and unless the appointment of particular officers is, by the constitution,
expressly conferred on the executive department or forbidden to the legislature the latter may, by
statute, vest the power of appointment in its discretion. The ordinary constitutional distributive clause
providing for the complete separation of governmental power has generally been held insufficient to
vest the appointing power solely in the executive. Thus a statute conferring on a circuit judge the
power to fill vacancies in a board of park commissioners is valid. So a board of civil service
commissioners may be appointed by the legislature for the purpose of prescribing qualifications for
offices except such as are otherwise provided for in the constitution. (12 C.J., 836, par. 319, n. 1.)

A provision of the constitution precluding the legislature from electing or appointing officers does not
invalidate an act creating a board or commission of which certain state officers shall be ex-officio
members, nor prevent the legislature from imposing new functions on existing officers. (12 C.J., 837,
par. 319, n. 5.)

Under the American system of government the chief executive has no prerogative powers, but is
confined to the exercise of those powers conferred upon him by the constitution and statutes. (12 C. J.,
898, par. 402; State vs. Bowden, 92 S. C., 393; Richardson vs. Young, 122 Tenn., 471.)
This must be true of the Governor-General of the Philippine Islands, when section 21 of the Jones Law
says in part:

He shall, unless otherwise herein provided, appoint, by and with the consent of the Philippine Senate,
such officers as may now be appointed by the Governor-General, or such as he is authorized by this Act
to appoint, or whom he may hereafter be authorized by law to appoint.

The enumeration of the instances in which the Governor-General may make appointments, implies
that he has not been empowered to make all appointments. The expression "whom he may hereafter
be authorized by the law to appoint," implies clearly that there may be certain cases in which he may
not be authorized to make appointments.

It is contended that the legislature may make such appointments where the source of power is the
people or the constitution made by the people, as the residuum of power is entrusted in the legislature;
but that this may not be done in the Philippine Islands where the source of power is the Congress of
the United States, and the Philippine Legislature only acts by delegation of said body. The Congress of
the United States, after enumerating the powers pertaining to each of the three departments of the
Government and declaring which are the functions of each, has reserved to itself the power and
authority annul the laws enacted by the Philippine Legislature, which must be reported to it (Jones Law,
sec. 19). If the Congress of the United States had intended to limit the powers of the Philippine
Legislature to those enumerated by it in the Organic Act and to those of purely legislative character, it
would seem that there would have been no necessity for making such reservation; because all laws
passed by the Philippine Legislature which are within its powers will of necessity be valid, and all laws in
excess of its powers will be null and void, and the courts will so declare them. It is only when a
residuum of power is left with a legislature which does not owe its powers to the people or to a
constitution made by the people, as the Philippine Legislature, that such reservation becomes
necessary; for it may exercise a power which the Congress had not intended it should exercise, and
which the latter may be powerless to correct, giving room to doubts with no other means of solving
them except by judicial decision, which may be precisely the contrary of what the Congress may have
intended. If such reservation of power and authority has any meaning at all, as it must have, it cannot
be other than to avoid doubts and undertainties as to the authority of the legislature to enact certain
laws, by permitting those affected by them to determine by the action or inaction of Congress whether
or not such power was one of those constituting the residuum.

Furthermore, nothing could have prevented the Congress of the United States from giving to the
Philippine Legislature the power of appointment to an office which have not previously been vested
expressly in the Governor-General, as nothing had prevented if from placing in the hands of the
Philippine Commission not only executive but legislative powers as well. If so, there is nothing that can
prevent it from ratifying any law by which executive officers are created and filled by the legislature
with its own members. Ratification may be made either expressly or impliedly. Act No. 2705, as
amended by Act No. 2822, having been reported to Congress, the failure of the latter to annul it was
equivalent to an implied ratification.

In the case of Fajardo Sugar Co. of Porto rico vs. Holcomb, decided on Noveberm 23, 1926, the Federal
Court of the First Circuit said:

If, turning from the section specifically dealing with the powers of the auditor, we look more broadly at
the structure of the Government of Porto Rico provided under the Organic Act, — we are driven to the
same conclusion. Under that Act, the Governor-General, Attorney-General, Commissioner of Education,
and Auditor are presidential appointees. The Governor has, in general, the powers of the Governor of
one of our states, and, besides, he is required annually to make official report of the transactions of the
government of Porto Rico to the executive department of the United States, to be designated by the
President, and the said annual report shall be transmitted to the Congress. Moreover, in section 34
(Camp. St., par. 3803 n), it is provided that if, after veto of the Governor, the Legislature shall by a
two-thirds vote pass an Act over the veto, the Governor, if he shall not then approve, shall transmit the
proposed Act to the President of the United States; that "if the President of the United States approve
the same he shall sign it and it shall become a law. If he shall not approve same, he shall return it to the
Governor so stating, and it shall not become a law." It follows that no Act can become a law without
the approval of the Porto Rican Governor, a presidential appointee, or the President of the United
States. There is also a provision in section 34 that:

'All laws enacted by the legislature of Porto Rico shall be reported to the Congress of the United
States . . . which hereby reserves the power and authority to annul same.'

If not thus annulled, within reasonable time, there is a presumption that they are approved.
(Tiaco vs. Forbes, 228 U. S., 549, 558; 33 S. Ct. 585; 57 Law. ed., 960; Porto Rico vs. American, etc., R. R.,
254 F., 369; 165 C. C. A., 589; Camunas vs. P. R. Ry., etc., Co. [C. C. A.], 272 F., 924, 931, and cases
cited.)

The result is that all Porto Rican legislation now on the statute books is — in a very real sense, though
indirectly — the output of our Federal Government. Under such conditions, the court should not lightly
assume that the tax acts of Porto Rico, now contended to be in conflict with section 20 of the Organic
Act, are inconsistent and therefore invalid. Doubtless the relation of the Organic Act to the Porto Rican
Government is in certain respects, like the relation of a state Constitution to a state Legislature.
(Camunas vs. P. R. Ry., etc., Co. [C. C. A.], 272 F., 924, 928.)

But the analogy is not complete; for, after all, the Organic Act is nothing but federal legislation, and
Porto Rican legislation, approved expressly or impliedly by Congress, has exactly the same import.

The only prohibition to the appointment of members of the Philippine Legislature to executive public
offices is that contained in section 18 of the Jones Law, which says that "No Senator or Representative
shall, during the time for which he may have been elected, be eligible to any office the election to
which is vested in the Legislature, nor shall be appointed to any office of trust or profit which shall have
been created or the emoluments of which shall have been increased during such term." The present
Speaker of the House of Representatives is clearly not within said prohibition, as Act No. 2705 creating
said committee was enacted in 1917, before his term of office began in 1922; so the now President of
the Senate, for which the said Act was passed during his term of office, that term had already expired
in 1922, and he is not serving another term (1922-1928).

Therefore, the Philippine Legislature may not only create the voting committee but designate the
President of the Senate and the Speaker of the House of Representatives as ex-officio members of said
committee, always granting, for the sake of argument, that membership therein is a public office.

It only remains now for us to dispose of another question, that of the power of the Governor-General
to vote the stock of the Government alone, granting again, for the sake of argument, that section 4 of
Act No. 2705, as amended by Act No. 2822, is unconstitutional in so far as it refers to the designation of
the President if the Senate and the Speaker of the House of Representatives as ex-officio members of
the voting committee.

The provision in constitutions as to distribution of powers, and as to the executive power of the state
being vested in the Governor, is declaratory and does not confer any specific powers" (12 C. J., 898;
Field vs. Peo, 3 Ill., 79). The power to vote the stock of the Government is delegated to a committee to
be composed exclusively of the Governor-General, the President of the Senate, and the Speaker of the
House of Representatives, and the rule is "Where the power is delegated for a mere private purpose,
all the persons (if more than one), upon whom the authority is conferred must unite and concur in the
exercise. In case of the delegation of a public authority to three or more persons, the authority
conferred may be exercised and performed by a majority of the whole member. If the act to be done
by virtue of such public authority requires the exercise of discretions and judgment, — in order words,
if it is a judicial act, — the persons to whom the authority is delegated must meet and confer together,
and be present when the act is performed; or at least a majority must meet, confer, and be present
after all have been notified to attend. Where the act is to be done is merely ministerial, a majority must
concur and unite in the performance of the act, but they may act separately. (18 C. J., 472, note 3-a;
Perry vs. Tynen, 22 Barb [N. Y., 137, 140].)

Whether we consider the delegation of the power to vote the stock of the Government as for public or
private purpose, the Governor-General alone cannot exercise it as the voting requires the exercise of
discretion and judgment, and at least a majority must concur after all have been notified.

To recapitulate, we believe that we have demonstrated the following propositions:

1. That the National Coal Company is not an agency or instrumentality of the Government of the
Philippine Islands.

2. That the Government of the Philippine Islands, as mere corporator, if it had to vote its own stock
would have to do so in the capacity of a private citizen, and not in its sovereign capacity.

3. That the voting committee in exercising the power delegated to it does so in the same capacity as its
principal.

4. That the voting of the stock of the Government is a private act, and the committee in doing so
performs a private function, and therefore membership therein is a private and not a public office.

5. That membership in the voting committee being a private position and not a public office, the
designation by the Philippine Legislature of the President of the Senate and the Speaker of the House
of Representatives as ex-officio members thereof was not an encroachment upon the power of
supervision and control over all executive functions of the Government vested in the
Governor-General.

6. That even granting that membership in said committee is a public office, still the Philippine
Legislature has the power to designate the President of the Senate and the Speaker of the House of
Representatives as ex-officio members of said committee, by virtue of the residuum of power placed in
its hands by the Congress of the United States.

7. That whether we consider the delegation of the voting power as for public or private purposes, the
Governor-General alone cannot exercise that power as it requires discretion and judgment, and at least
a majority must concur.

8. That, finally, the Congress of the United States by its reserved power and authority to annul any law
of the Philippine Legislature, has by its silence impliedly ratified Act No. 2705, as amended by Act No.
2822.

For the foregoing considerations we are of the opinion that the demurrer should be sustained and the
complaint be dismissed.

G.R. No. 149036 April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and
GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services Department of the
Commission on Elections, respondents.

CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure.
Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the constitutionality of the
appointment and the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for
brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z.
Borra ("Borra" for brevity) and 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 COMELEC’s 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 Borra4 and Tuason5 as COMELEC Commissioners, each for a term of seven years and
all expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of
COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions
as COMELEC Commissioners. The Office of the President submitted to the Commission on
Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason for
confirmation.6 However, the Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and
Tuason to the same positions and for the same term of seven years, expiring on February 2, 2008. 7
They took their oaths of office for a second time. The Office of the President transmitted on June 5,
2001 their appointments to the Commission on Appointments for confirmation.8

Congress adjourned before the Commission on Appointments could act on their appointments. Thus,
on June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo,
Borra and Tuason to the same positions.9 The Office of the President submitted their appointments for
confirmation to the Commission on Appointments.10 They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 200111
addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating
Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID
Commissioner-in-Charge Mehol K. Sadain objected to petitioner’s reassignment in a Memorandum
dated April 14, 200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain
questioned Benipayo’s failure to consult the Commissioner-in-Charge of the EID in the reassignment of
petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and
her reassignment to the Law Department.13 Petitioner cited Civil Service Commission Memorandum
Circular No. 7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of
employees are prohibited during the election period beginning January 2 until June 13, 2001."
Benipayo denied her request for reconsideration on April 18, 2001,14 citing COMELEC Resolution No.
3300 dated November 6, 2000, which states in part:

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of its
field personnel within the thirty-day period before election day shall be effected after due notice and
hearing."

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal complaint16
with the Law Department17 against Benipayo, alleging that her reassignment violated Section 261 (h) of
the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07,
s. 001, and other pertinent administrative and civil service laws, rules and regulations.

During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as
Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad
interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director
IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the
disbursements made by COMELEC Finance Services Department Officer-in-Charge Gideon C. De
Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.18 They all took their oaths of office
anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its
power of judicial review in constitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;

3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo,
Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate the prohibition on reappointment under
Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having been done without the
approval of the COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department, in continuing
to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may
exercise its power of judicial review in constitutional cases. Out of respect for the acts of the Executive
department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing
the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and
Tuason unless all the four requisites are present. These are: (1) the existence of an actual and
appropriate controversy; (2) a personal and substantial interest of the party raising the constitutional
issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the
constitutional issue is the lis mota of the case.19 Respondents argue that the second, third and fourth
requisites are absent in this case. Respondents maintain that petitioner does not have a personal and
substantial interest in the case because she has not sustained a direct injury as a result of the ad
interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents
point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by
Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the appointments of
these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001
despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early
as March 22, 2001. Moreover, the petition was filed after the third time that these three respondents
were issued ad interim appointments.

Respondents insist that the real issue in this case is the legality of petitioner’s reassignment from the
EID to the Law Department. Consequently, the constitutionality of the ad interim appointments is not
the lis mota of this case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department,
where she was placed on detail service.20 Respondents claim that the reassignment was "pursuant to x
x x Benipayo’s authority as Chairman of the Commission on Elections, and as the Commission’s Chief
Executive Officer."21 Evidently, respondents anchor the legality of petitioner’s reassignment on
Benipayo’s authority as Chairman of the COMELEC. The real issue then turns on whether or not
Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID,
her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office
created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioner’s reassignment is legal and she has no cause to
complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has
a personal and material stake in the resolution of the constitutionality of Benipayo’s assumption of
office. Petitioner’s personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman,
clothes her with the requisite locus standi to raise the constitutional issue in this petition.
Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on
August 3, 2001, when the first ad interim appointments were issued as early as March 22, 2001.
However, it is not the date of filing of the petition that determines whether the constitutional issue
was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise
it in the pleadings before a competent court that can resolve the same, such that, "if it is not raised in
the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal."22 Petitioner questioned the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest
opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court
may determine, in the exercise of sound discretion, the time when a constitutional issue may be
passed upon.23 There is no doubt petitioner raised the constitutional issue on time.

Moreover, the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad

interim appointment and assumption of office. Unless the constitutionality of Benipayo’s ad
interim appointment and assumption of office is resolved, the legality of petitioner’s reassignment
from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections
may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with
this Court’s duty to determine whether other agencies of government have remained within the limits
of the Constitution and have not abused the discretion given them, this Court may even brush aside
technicalities of procedure and resolve any constitutional issue raised.24 Here the petitioner has
complied with all the requisite technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is
prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity." (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the
President at her pleasure, and can even be disapproved or simply by-passed by the Commission on
Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in
character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the
Constitution.

Based on petitioner’s theory, there can be no ad interim appointment to the COMELEC or to the other
two constitutional commissions, namely the Civil Service Commission and the Commission on Audit.
The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article
IX-D providing for the creation of the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad
interim appointee cannot assume office until his appointment is confirmed by the Commission on
Appointments for only then does his appointment become permanent and no longer temporary in
character.

The rationale behind petitioner’s theory is that only an appointee who is confirmed by the Commission
on Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond
the influence of the President or members of the Commission on Appointments since his appointment
can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of
both the appointing and confirming powers since his appointment can be terminated at any time for
any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee
whose confirmation is pending with the Commission on Appointments.

We find petitioner’s argument without merit.

An ad interim appointment is a permanent appointment because it takes effect immediately and can
no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on Appointments does not alter its permanent character.
The Constitution itself makes an ad interim appointment permanent in character by making it effective
until disapproved by the Commission on Appointments or until the next adjournment of Congress. The
second paragraph of Section 16, Article VII of the Constitution provides as follows:

"The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress." (Emphasis supplied)

Thus, the ad interim appointment remains effective until such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by the President. The fear that the President
can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without
basis.

More than half a century ago, this Court had already ruled that an ad interim appointment is
permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that:

"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of
the Constitution, which provides that the ‘President shall have the power to make appointments during
the recess of the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interim appointment is disapproved
certainly for a reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an ‘acting’ appointment which is merely temporary, good until another
permanent appointment is issued." (Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The appointee can at once assume office and exercise,
as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on
Appointments,26 this Court elaborated on the nature of an ad interim appointment as follows:

"A distinction is thus made between the exercise of such presidential prerogative requiring
confirmation by the Commission on Appointments when Congress is in session and when it is in recess.
In the former, the President nominates, and only upon the consent of the Commission on
Appointments may the person thus named assume office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual chosen may thus qualify and perform his function
without loss of time. His title to such office is complete. In the language of the Constitution, the
appointment is effective ‘until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.’"

Petitioner cites Black’s Law Dictionary which defines the term "ad interim" to mean "in the meantime"
or "for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly
temporary in character. This argument is not new and was answered by this Court in Pamantasan ng
Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we explained that:

"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ‘ad interim’ appointments
which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal
translation of the word ‘ad interim’ which creates such belief. The term is defined by Black to mean "in
the meantime" or "for the time being". Thus, an officer ad interim is one appointed to fill a vacancy, or
to discharge the duties of the office during the absence or temporary incapacity of its regular
incumbent (Black’s Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the
use intended in the context of Philippine law. In referring to Dr. Esteban’s appointments, the term is
not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner
in which said appointments were made, that is, done by the President of the Pamantasan in the
meantime, while the Board of Regents, which is originally vested by the University Charter with the
power of appointment, is unable to act. x x x." (Emphasis supplied)

Thus, the term "ad interim appointment", as used in letters of appointment signed by the President,
means a permanent appointment made by the President in the meantime that Congress is in recess. It
does not mean a temporary appointment that can be withdrawn or revoked at any time. The term,
although not found in the text of the Constitution, has acquired a definite legal meaning under
Philippine jurisprudence. The Court had again occasion to explain the nature of an ad
interim appointment in the more recent case of Marohombsar vs. Court of Appeals,28 where the Court
stated:

"We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office
No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the Board disapproves them." (Emphasis
supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o
officer or employee in the civil service shall be removed or suspended except for cause provided by
law."29 Thus, an ad interim appointment becomes complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is
communicated to the appointee before the moment he qualifies, and any withdrawal or revocation
thereafter is tantamount to removal from office.30 Once an appointee has qualified, he acquires a legal
right to the office which is protected not only by statute but also by the Constitution. He can only be
removed for cause, after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first
cause is the disapproval of his ad interim appointment by the Commission on Appointments. The
second cause is the adjournment of Congress without the Commission on Appointments acting on his
appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all
ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over
the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself
that places the Sword of Damocles over the heads of the ad interim appointees.

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.31 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.
Thus, in Brillantes vs. Yorac,32 this Court struck down as unconstitutional the designation by then
President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the
COMELEC. This Court ruled that:

"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at
will. No cause need be established to justify its revocation. Assuming its validity, the designation of the
respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of
the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.

xxx

The Constitution provides for many safeguards to the independence of the Commission on Elections,
foremost among which is the security of tenure of its members. That guarantee is not available to the
respondent as Acting Chairman of the Commission on Elections by designation of the President of the
Philippines."

Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not
have a provision prohibiting temporary or acting appointments to the COMELEC, this Court
nevertheless declared unconstitutional the designation of the Solicitor General as acting member of
the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared then: "It would be
more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint
a permanent Commissioner than to designate one to act temporarily." (Emphasis supplied)

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in
the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in
Brillantes vs. Yorac34 and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.35 The ad
interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which
authorizes the President, during the recess of Congress, to make appointments that take effect
immediately.

While the Constitution mandates that the COMELEC "shall be independent" 36 , this provision should be
harmonized with the President’s power to extend ad interim appointments. To hold that the
independence of the COMELEC requires the Commission on Appointments to first confirm ad
interim appointees before the appointees can assume office will negate the President’s power to
make ad interim appointments. This is contrary to the rule on statutory construction to give meaning
and effect to every provision of the law. It will also run counter to the clear intent of the framers of the
Constitution.

The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not provide for ad interim appointments. The
original intention of the framers of the Constitution was to do away with ad interim appointments
because the plan was for Congress to remain in session throughout the year except for a brief 30-day
compulsory recess. However, because of the need to avoid disruptions in essential government
services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following discussion during the deliberations of the
Constitutional Commission elucidates this:

"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments? Perhaps there should be a little discussion on that.

xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in
terms of anticipating interruption of government business, considering that we are not certain of the
length of involuntary recess or adjournment of the Congress. We are certain, however, of the
involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the
matter of involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a
formula x x x.

xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner Aquino and I propose the following amendment as the
last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT
SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT
BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL
DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE
CONGRESS.

This is otherwise called the ad interim appointments.

xxx

THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and
Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the
amendment is approved."37 (Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the
President was for the purpose of avoiding interruptions in vital government services that otherwise
would result from prolonged vacancies in government offices, including the three constitutional
commissions. In his concurring opinion in Guevara vs. Inocentes,38 decided under the 1935
Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments
in this manner:
"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the
session of Congress, the evil sought to be avoided – interruption in the discharge of essential functions –
may take place. Because the same evil would result if the appointments ceased to be effective during
the session of Congress and before its adjournment. Upon the other hand, once Congress has
adjourned, the evil aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments." (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely
avoided the interruption of essential government services in the May 2001 national elections.
Following the decision of this Court in Gaminde vs. Commission on Appointments,39 promulgated on
December 13, 2000, the terms of office of constitutional officers first appointed under the Constitution
would have to be counted starting February 2, 1987, the date of ratification of the Constitution,
regardless of the date of their actual appointment. By this reckoning, the terms of office of three
Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001. 40

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February 15, 2002,41 the original expiry date of the term of
her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of
the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of
Commissioner Julio F. Desamito was November 3, 2001.42 The original expiry dates of the terms of
office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to
fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling, there
were three vacancies in the seven-person COMELEC, with national elections looming less than three
and one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated
their offices on February 2, 2001 and did not question any more before this Court the applicability of
the Gaminde ruling to their own situation.

In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in
choosing her successor might create a "constitutional crisis" in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a petition for intervention 44 in
the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated
his office on February 2, 2001.

During an election year, Congress normally goes on voluntary recess between February and June
considering that many of the members of the House of Representatives and the Senate run for
re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001. 45
Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad
interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments
before the May 14, 2001 elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three
vacancies in the COMELEC, there would only have been one division functioning in the COMELEC
instead of two during the May 2001 elections. Considering that the Constitution requires that "all x x x
election cases shall be heard and decided in division",46 the remaining one division would have been
swamped with election cases. Moreover, since under the Constitution motions for reconsideration
"shall be decided by the Commission en banc", the mere absence of one of the four remaining
members would have prevented a quorum, a less than ideal situation considering that the
Commissioners are expected to travel around the country before, during and after the elections. There
was a great probability that disruptions in the conduct of the May 2001 elections could occur because
of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections,
right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and
strengthening our democracy.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad
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

interim appointment is a matter within the prerogative of the President because the Constitution
grants her that power. This Court cannot inquire into the propriety of the choice made by the President
in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack or
excess of jurisdiction on her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice.

Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E.
Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F.
Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President
Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar,
Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.49

The President’s power to extend ad interim appointments may indeed briefly put the appointee at the
mercy of both the appointing and confirming powers. This situation, however, is only for a short period
- from the time of issuance of the ad interim appointment until the Commission on Appointments gives
or withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the evil of
disruptions in vital government services. This is also part of the check-and-balance under the
separation of powers, as a trade-off against the evil of granting the President absolute and sole power
to appoint. The Constitution has wisely subjected the President’s appointing power to the checking
power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional
body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members
hold confirmed appointments, and not one President will appoint all the COMELEC members. 50 In the
instant case, the Commission on Appointments had long confirmed four51 of the incumbent COMELEC
members, comprising a majority, who could now be removed from office only by impeachment. The
special constitutional safeguards that insure the independence of the COMELEC remain in place. 52 The
COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own
rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased
during their tenure.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and
Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office
by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments
and their subsequent assumption of office to the same positions violate the prohibition on
reappointment under Section 1 (2), Article IX-C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
members for three years, without reappointment. X x x." (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on

Appointments, his ad interim appointment can no longer be renewed because this will violate Section 1
(2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is
particularly true to permanent appointees who have assumed office, which is the situation of Benipayo,
Borra and Tuason if their ad interim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can
no longer be extended a new appointment. The disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its
consent after deliberating on the qualifications of the appointee. Since the Constitution does not
provide for any appeal from such decision, the disapproval is final and binding on the appointee as well
as on the appointing power. In this instance, the President can no longer renew the appointment not
because of the constitutional prohibition on reappointment, but because of a final decision by the
Commission on Appointments to withhold its consent to the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally
acted upon on the merits by the Commission on Appointments at the close of the session of Congress.
There is no final decision by the Commission on Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such decision, the President is free to renew the
ad interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the
Commission on Appointments, which provides as follows:

"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or

appointments submitted by the President of the Philippines which are not finally acted upon at the
close of the session of Congress shall be returned to the President and, unless new nominations or
appointments are made, shall not again be considered by the Commission." (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be
considered again if the President renews the appointment.

It is well settled in this jurisdiction that the President can renew the ad interim appointments of
by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in
Guevara vs. Inocentes53 why by-passed ad interim appointees could be extended new appointments,
thus:

"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,
because the incumbent can not continue holding office over the positive objection of the Commission.
It ceases, also, upon "the next adjournment of the Congress", simply because the President may then
issue new appointments - not because of implied disapproval of the Commission deduced from its
inaction during the session of Congress, for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never by omission. If the adjournment of Congress
were an implied disapproval of ad interim appointments made prior thereto, then the President could
no longer appoint those so by-passed by the Commission. But, the fact is that the President may
reappoint them, thus clearly indicating that the reason for said termination of the ad
interim appointments is not the disapproval thereof allegedly inferred from said omission of the
Commission, but the circumstance that upon said adjournment of the Congress, the President is free to
make ad interim appointments or reappointments." (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16,
Article VII of the present Constitution on ad interim appointments was lifted verbatim.54 The
jurisprudence under the 1935 Constitution governing ad interim appointments by the President is
doubtless applicable to the present Constitution. The established practice under the present
Constitution is that the President can renew the appointments of by-passed ad interim appointees.
This is a continuation of the well-recognized practice under the 1935 Constitution, interrupted only by
the 1973 Constitution which did not provide for a Commission on Appointments but vested sole
appointing power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be
revived by another ad interim appointment because the disapproval is final under Section 16, Article VII
of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of
the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment
because there is no final disapproval under Section 16, Article VII of the Constitution, and such new
appointment will not result in the appointee serving beyond the fixed term of seven years.

Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners
shall be appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There
are four situations where this provision will apply. The first situation is where an ad interim appointee
to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year
term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman,
because he will then be actually serving more than seven years. The second situation is where the
appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of
office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy
arising from retirement because a reappointment will result in the appointee also serving more than
seven years. The third situation is where the appointee is confirmed to serve the unexpired term of
someone who died or resigned, and the appointee completes the unexpired term. Such person cannot
be reappointed, whether as a member or chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years.

The fourth situation is where the appointee has previously served a term of less than seven years, and
a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years,
a reappointment of such person to serve an unexpired term is also prohibited because his situation will
be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first appointees under the Constitution whose terms of office
are less than seven years, but are barred from ever being reappointed under any situation. Not one of
these four situations applies to the case of Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person who has served any term of office
as COMELEC member – whether for a full term of seven years, a truncated term of five or three years,
or even for an unexpired term of any length of time – can no longer be reappointed to the COMELEC.
Commissioner Foz succinctly explained this intent in this manner:
"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the
case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the
term or tenure is for seven years. But in cases where the appointee serves only for less than seven
years, he would be entitled to reappointment. Unless we put the qualifying words "without
reappointment" in the case of those appointed, then it is possible that an interpretation could be made
later on their case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those first
appointed under the Constitution, no reappointment can be made."55 (Emphasis supplied)

In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De
Vera57 that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say,
three or six years, provided his term will not exceed nine years in all." This was the interpretation
despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office for a
term of nine years and may not be reappointed."

To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2),
Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person
previously appointed for a term of seven years. The second phrase prohibits reappointment of any
person previously appointed for a term of five or three years pursuant to the first set of appointees
under the Constitution. In either case, it does not matter if the person previously appointed completes
his term of office for the intention is to prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments
does not constitute a term of office. The period from the time the ad interim appointment is made to
the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that
the President by his unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile
the confirming power of the Commission on Appointments.

The phrase "without reappointment" applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term of
office. There must be a confirmation by the Commission on Appointments of the previous appointment
before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and
negate the President’s power to make ad interim appointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on
the ad interim appointments first issued to appointees. If such ad interim appointments can no longer
be renewed, the President will certainly hesitate to make ad interim appointments because most of her
appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This
will nullify the constitutional power of the President to make ad interim appointments, a power
intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition
that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of
the present Constitution prohibited reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and confirmed even if they served for less
than seven years. The second is to insure that the members of the three constitutional commissions do
not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional
Commission, Commissioner Vicente B. Foz, who sponsored58 the proposed articles on the three
constitutional commissions, outlined the four important features of the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting
the three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that)
appropriations shall be automatically and regularly released to the Commission in the same manner (as)
provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure
continuity of functions and to minimize the opportunity of the President to appoint all the members
during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during
their term of office; and 4) appointments of members would not require confirmation." 59 (Emphasis
supplied)

There were two important amendments subsequently made by the Constitutional Commission to these
four features. First, as discussed earlier, the framers of the Constitution decided to require
confirmation by the Commission on Appointments of all appointments to the constitutional
commissions. Second, the framers decided to strengthen further the prohibition on serving beyond the
fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in office for
12 years despite his fixed term of seven years. The following exchange in the deliberations of the
Constitutional Commission is instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsor’s
attention, first of all, to Section 2 (2) on the Civil Service Commission wherein it is stated: "In no case
shall any Member be appointed in a temporary or acting capacity." I detect in the Committee’s
proposed resolutions a constitutional hangover, if I may use the term, from the past administration.
Am I correct in concluding that the reason the Committee introduced this particular provision is to
avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an
acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and
then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that
appointment to (its) logical conclusion, he occupied that position for about 12 years in violation of the
Constitution?

MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is
appointed to any of the commissions does not serve beyond 7 years."60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more
than seven years. The purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting capacities."61 (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of
any kind. On the other hand, the prohibition on temporary or acting appointments is intended to
prevent any circumvention of the prohibition on reappointment that may result in an appointee’s total
term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very
specific - reappointment of any kind and exceeding one’s term in office beyond the maximum period of
seven years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even
further the screws on those who might wish to extend their terms of office. Thus, the word
"designated" was inserted to plug any loophole that might be exploited by violators of the Constitution,
as shown in the following discussion in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words
OR DESIGNATED so that the whole sentence will read: "In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity."

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any
Member be appointed in a temporary or acting capacity."

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a
distinction between an appointment and a designation. The Gentleman will recall that in the case of
Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of
Justice opined that it did not because he was only designated during the time that he acted as
Commissioner on Audit. So, in order to erase that distinction between appointment and designation,
we should specifically place the word so that there will be no more ambiguity. "In no case shall any
Member be appointed OR DESIGNATED in a temporary or acting capacity."

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the
amendment is approved."62

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and
Tuason do not violate the prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The same ad interim appointments and renewals of
appointments will also not breach the seven-year term limit because all the appointments and
renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2,
2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office.
Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these
three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the
Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so
long as their terms of office expire on February 2, 2008, does not violate the prohibition on
reappointments in Section 1 (2), Article IX-C of the Constitution.

Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign
her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body,
can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her
consent amounts to removal from office without due process and therefore illegal.

Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of
Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman,
and consequently he has full authority to exercise all the powers of that office for so long as his ad
interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the
Revised Administrative Code, the Chairman of the COMELEC is vested with the following power:

"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief
Executive Officer of the Commission, shall:
xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of
the Civil Service Law." (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to
transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the COMELEC en banc.

Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001,
attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV
position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive
Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary
qualifications for holding the position of Director IV as prescribed in the Qualifications Standards
(Revised 1987) issued by the Civil Service Commission. 65 Obviously, petitioner does not enjoy security
of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court
held that:

"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of tenure
in respect of that position. As held in Achacoso v. Macaraig:

‘It is settled that a permanent appointment can be issued only ‘to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed.’ Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and ‘at a moment’s
notice’, conformably to established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer security of
tenure on its occupant even if he does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position cannot be appointed to it in the first
place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence
of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it
may be so designated x x x.’"

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that
a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing
power happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act
under Section 261 (h) of the Omnibus Election Code, which provides as follows:

"Section 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any
transfer or detail whatever of any officer or employee in the civil service including public school
teachers, within the election period except upon prior approval of the Commission."
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect
transfers or reassignments of COMELEC personnel during the election period. 67 Moreover, petitioner
insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC
personnel during the election period.

Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part:

"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as
follows:

xxx

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service – Any public official who makes or causes any
transfer or detail whatever of any officer or employee in the civil service including public school
teachers, within the election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14,
2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it can carry out its constitutional duty to conduct
free, orderly, honest, peaceful and credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of
its field personnel within the thirty-day period before election day shall be effected after due notice
and hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised
Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested with the power to
transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority
to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No.
3300 to require such concurrence will render the resolution meaningless since the COMELEC en
banc will have to approve every personnel transfer or reassignment, making the resolution utterly
useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval from the COMELEC en banc
to actually implement such transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during
the election period. Thus, Benipayo’s 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, Benipayo’s 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

G.R. No. 139554 July 21, 2006

ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and FREDDIE
GARCIA, petitioners,
vs.
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE POTENCIANO,
and DOREEN FERNANDEZ, respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 139565 July 21, 2006

BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE POTENCIANO,
and DOREEN FERNANDEZ, petitioners,
vs.
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and FREDDIE
GARCIA, respondents.

DECISION

CARPIO, J.:

Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP) for the primary
purpose of propagating arts and culture in the Philippines.1 The CCP is to awaken the consciousness of
the Filipino people to their artistic and cultural heritage and encourage them to preserve, promote,
enhance, and develop such heritage.2

PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the Board to draw up
programs and projects that (1) cultivate and enhance public interest in, and appreciation of, Philippine
art; (2) discover and develop talents connected with Philippine cultural pursuits; (3) create
opportunities for individual and national self-expression in cultural affairs; and (4) encourage the
organization of cultural groups and the staging of cultural exhibitions. 3 The Board administers and
holds in trust real and personal properties of the CCP for the benefit of the Filipino people.4 The Board
invests income derived from its projects and operations in a Cultural Development Fund set up to
attain the CCP's objectives.5

The consolidated petitions in the case at bar stem from a quo warranto proceeding involving two sets
of CCP Boards. The controversy revolves on who between the contending groups, both claiming as the
rightful trustees of the CCP Board, has the legal right to hold office. The resolution of the issue boils
down to the constitutionality of the provision of PD 15 on the manner of filling vacancies in the Board.

The Case

Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino ("Rufino"), Zenaida R. Tantoco
("Tantoco"),6 Lorenzo Calma ("Calma"), Rafael Simpao, Jr. ("Simpao"), and Freddie Garcia ("Garcia"),
represented by the Solicitor General and collectively referred to as the Rufino group, seek to set aside
the Decision7 dated 14 May 1999 of the Court of Appeals in CA-G.R. SP No. 50272 as well as the
Resolution dated 3 August 1999 denying the motion for reconsideration. The dispositive portion of the
appellate court's decision reads:

WHEREFORE, judgment is hereby rendered

1) Declaring petitioners [the Endriga group] to have a clear right to their respective offices to which
they were elected by the CCP Board up to the expiration of their 4-year term,

2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from their
respective offices and excluding them therefrom, and

3) Dismissing the case against respondent Zenaida R. Tantoco.

SO ORDERED.8

In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo ("Lagdameo"),
Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"), and Doreen Fernandez
("Fernandez"), collectively referred to as the Endriga group, assail the Resolution dated 3 August 1999
issued by the Court of Appeals in the same case insofar as it denied their Motion for Immediate
Execution of the Decision dated 14 May 1999.

The Antecedents

On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30) creating
the Cultural Center of the Philippines as a trust governed by a Board of Trustees of seven members to
preserve and promote Philippine culture. The original founding trustees, who were all appointed by
President Marcos, were Imelda Romualdez-Marcos, Juan Ponce-Enrile, Andres Soriano, Jr., Antonio
Madrigal, Father Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino.

On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD 15, 9 the
CCP's charter, which converted the CCP under EO 30 into a non-municipal public corporation free from
the "pressure or influence of politics."10 PD 15 increased the members of CCP's Board from seven to
nine trustees. Later, Executive Order No. 1058, issued on 10 October 1985, increased further the
trustees to 11.
After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the courtesy
resignations of the then incumbent CCP trustees and appointed new trustees to the Board. Eventually,
during the term of President Fidel V. Ramos, the CCP Board included Endriga, Lagdameo, Sison,
Potenciano, Fernandez, Lenora A. Cabili ("Cabili"), and Manuel T. Mañosa ("Mañosa").

On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees to the CCP
Board for a term of four years to replace the Endriga group as well as two other incumbent trustees.
The seven new trustees were:

1. Armita B. Rufino - President, vice Baltazar N. Endriga

2. Zenaida R. Tantoco - Member, vice Doreen Fernandez

3. Federico Pascual - Member, vice Lenora A. Cabili

4. Rafael Buenaventura - Member, vice Manuel T. Mañosa

5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo

6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison

7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano

Except for Tantoco, the Rufino group took their respective oaths of office and assumed the
performance of their duties in early January 1999.

On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court questioning
President Estrada's appointment of seven new members to the CCP Board. The Endriga group alleged
that under Section 6(b) of PD 15, vacancies in the CCP Board "shall be filled by election by a vote of a
majority of the trustees held at the next regular meeting x x x." In case "only one trustee survive[s], the
vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the
[CCP]." The Endriga group claimed that it is only when the CCP Board is entirely vacant may the
President of the Philippines fill such vacancies, acting in consultation with the ranking officers of the
CCP.

The Endriga group asserted that when former President Estrada appointed the Rufino group, only one
seat was vacant due to the expiration of Mañosa's term. The CCP Board then had 10 incumbent
trustees, namely, Endriga, Lagdameo, Sison, Potenciano, Fernandez, together with Cabili, Father
Bernardo P. Perez ("Fr. Perez"), Eduardo De los Angeles ("De los Angeles"), Ma. Cecilia Lazaro ("Lazaro"),
and Gloria M. Angara ("Angara"). President Estrada retained Fr. Perez, De los Angeles, Lazaro, and
Angara as trustees.

Endriga's term was to expire on 26 July 1999, while the terms of Lagdameo, Sison, Potenciano, and
Fernandez were to expire on 6 February 1999. The Endriga group maintained that under the CCP
Charter, the trustees' fixed four-year term could only be terminated "by reason of resignation,
incapacity, death, or other cause." Presidential action was neither necessary nor justified since the CCP
Board then still had 10 incumbent trustees who had the statutory power to fill by election any vacancy
in the Board.

The Endriga group refused to accept that the CCP was under the supervision and control of the
President. The Endriga group cited Section 3 of PD 15, which states that the CCP "shall enjoy autonomy
of policy and operation x x x."
The Court referred the Endriga group's petition to the Court of Appeals "for appropriate action" in
observance of the hierarchy of courts.

On 14 May 1999, the Court of Appeals rendered the Decision under review granting the quo
warranto petition. The Court of Appeals declared the Endriga group lawfully entitled to hold office as
CCP trustees. On the other hand, the appellate court's Decision ousted the Rufino group from the CCP
Board.

In their motion for reconsideration, the Rufino group asserted that the law could only delegate to the
CCP Board the power to appoint officers lower in rank than the trustees of the Board. The law may not
validly confer on the CCP trustees the authority to appoint or elect their fellow trustees, for the latter
would be officers of equal rank and not of lower rank. Section 6(b) of PD 15 authorizing the CCP
trustees to elect their fellow trustees should be declared unconstitutional being repugnant to Section
16, Article VII of the 1987 Constitution allowing the appointment only of "officers lower in rank" than
the appointing power.

On 3 August 1999, the Court of Appeals denied the Rufino group's motion for reconsideration. The
Court of Appeals also denied the Endriga group's motion for immediate execution of the 14 May 1999
Decision.

Hence, the instant consolidated petitions.

Meanwhile, Angara filed a Petition-in-Intervention before this Court alleging that although she was not
named as a respondent in the quo warranto petition, she has an interest in the case as the then
incumbent CCP Board Chairperson. Angara adopted the same position and offered the same
arguments as the Rufino group.

The Ruling of the Court of Appeals

The Court of Appeals held that Section 6(b) of PD 15 providing for the manner of filling vacancies in the
CCP Board is clear, plain, and free from ambiguity. Section 6(b) of PD 15 mandates the remaining
trustees to fill by election vacancies in the CCP Board. Only when the Board is entirely vacant, which is
not the situation in the present case, may the President exercise his power to appoint.

The Court of Appeals stated that the legislative history of PD 15 shows a clear intent "to insulate the
position of trustee from the pressure or influence of politics by abandoning appointment by the
President of the Philippines as the mode of filling"11 vacancies in the CCP Board. The Court of Appeals
held that until Section 6(b) of PD 15 is declared unconstitutional in a proper case, it remains the law.
The Court of Appeals also clarified that PD 15 vests on the CCP Chairperson the power to appoint all
officers, staff, and personnel of the CCP, subject to confirmation by the Board.

The Court of Appeals denied the Rufino group's motion for reconsideration for failure to raise new
issues except the argument that Section 6(b) of PD 15 is unconstitutional. The Court of Appeals
declined to rule on the constitutionality of Section 6(b) of PD 15 since the Rufino group raised this issue
for the first time in the motion for reconsideration. The Court of Appeals also held, "Nor may the
President's constitutional and/or statutory power of supervision and control over government
corporations restrict or modify the application of the CCP Charter." 12

The Court of Appeals, moreover, denied the Endriga group's motion for immediate execution of
judgment on the ground that the reasons submitted to justify execution pending appeal were not
persuasive.
 The Issues

In G.R. No. 139554, the Rufino group, through the Solicitor General, contends that the Court of Appeals
committed reversible error:

x x x in holding that it was "not actuated" to pass upon the constitutionality of Section 6(b) of PD 15
inasmuch as the issue was raised for the first time in [Rufino et al.'s] motion for reconsideration;

II

x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that:

A. x x x [it] is an invalid delegation of the President's appointing power under the Constitution;

B. x x x [it] effectively deprives the President of his constitutional power of control and supervision over
the CCP;

III

x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply the
executive/administrative construction x x x which has been consistently recognized and accepted since
1972;

IV

x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees and officers of
the CCP considering that:

A. Endriga et al. are estopped from instituting the quo warranto action since they recognized and
benefited from the administrative construction regarding the filling of vacancies in the CCP Board of
Trustees x x x;

B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly elected under PD 15;

C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their offices because
their terms as trustees expired on 31 December 1998;

D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and were thus not
entitled to retain the same;

x x x in not dismissing the quo warranto petition for being moot x x x;

VI

x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared] entirely as vacant is
bereft of basis and amounts to "an admission of their lack of right to the office they claim."13
In G.R. No. 139565, the Endriga group raises the following issue:

whether a writ of quo warranto involving a public office should be declared a self-executing judgment
and deemed immediately executory under Rule 39, Section 4 of the Rules of Court. 14

The Court's Ruling

The petition in G.R. No. 139554 has merit.

The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to the country's
artistic and cultural activities. The highly publicized leadership row over the CCP created discord among
management, artists, scholars, employees, and even the public because of the public interest at stake.

Subsequently, the assumption to office of a new President in 2001 seemingly restored normalcy to the
CCP leadership. After then Vice-President Gloria Macapagal-Arroyo assumed the Presidency on 20
January 2001, the Rufino group tendered their respective resignations on 24-29 January 2001 as
trustees of the CCP Board. On 12 July 2001, President Macapagal-Arroyo appointed 11 trustees to the
CCP Board with the corresponding positions set opposite their names:

1. Baltazar N. Endriga - Chairman

2. Nestor O. Jardin - President

3. Ma. Paz D. Lagdameo - Member

4. Teresita O. Luz - Member

5. Irma P.E. Potenciano - Member

6. Eduardo D. De los Angeles - Member

7. Patricia C. Sison - Member

8. Benjamin H. Cervantes - Member

9. Sonia M. Roco - Member

10. Ruperto S. Nicdao, Jr. - Member

11. Lina F. Litton - Member

In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed trustees to the
same positions and as trustees of the CCP Board. In the same meeting, the Board also elected the
Chairman and President.

On 21 December 2001, the Solicitor General submitted to this Court a manifestation stating that the
"election of the trustees was made without prejudice to the resolution of the constitutional issues
before this Honorable Court in G.R. Nos. 139554 and 139565, x x x."15

The Issue of Mootness

We first consider the Rufino group's contention that the Endriga group's quo warranto suit should have
been dismissed for being moot. The Rufino group argued that when the Endriga group's terms
subsequently expired, there was no more actual controversy for the Court to decide.

For the Court to exercise its power of adjudication, there must be an actual case or controversy — one
that involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution.16 The case must not be moot or based on extra-legal or other similar considerations not
cognizable by courts of justice.17 A case becomes moot when its purpose has become stale.18

The purpose of the quo warranto petition was to oust the Rufino group from the CCP Board and to
declare the Endriga group as the rightful trustees of the CCP Board. It may appear that supervening
events have rendered this case moot with the resignation of the Rufino group as well as the expiration
of the terms of the Endriga group based on their appointments by then President Ramos. A "new" set
of CCP trustees had been appointed by President Macapagal-Arroyo and subsequently elected by the
CCP Board.

However, there are times when the controversy is of such character that to prevent its recurrence, and
to assure respect for constitutional limitations, this Court must pass on the merits of a case. This is one
such case.

The issues raised here are no longer just determinative of the respective rights of the contending
parties. The issues pertaining to circumstances personal to the Endriga group may have become stale.
These issues are (1) whether the Endriga group is estopped from bringing the quo warranto for they
themselves were appointed by the incumbent President; (2) whether they were validly elected by the
remaining CCP trustees; (3) whether their terms expired on 31 December 1998 as specified in their
appointment papers; and (4) whether they are entitled to immediate execution of judgment.

However, the constitutional question that gave rise to these issues will continue to spawn the same
controversy in the future, unless the threshold constitutional question is resolved — the validity of
Section 6(b) and (c) of PD 15 on the manner of filling vacancies in the CCP Board. While the issues may
be set aside in the meantime, they are certain to recur every four years, especially when a new
President assumes office, generating the same controversy all over again. Thus, the issues raised here
are capable of repetition, yet evading review if compromises are resorted every time the same
controversy erupts and the constitutionality of Section 6(b) and (c) of PD 15 is not resolved.

The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c) of PD 15 if only
to prevent a repeat of this regrettable controversy and to protect the CCP from being periodically
wracked by internecine politics. Every President who assumes office naturally wants to appoint his or
her own trustees to the CCP Board. A frontal clash will thus periodically arise between the President's
constitutional power to appoint under Section 16, Article VII of the 1987 Constitution and the CCP
trustees' power to elect their fellow trustees under Section 6(b) and (c) of PD 15.

This Court may, in the exercise of its sound discretion, brush aside procedural barriers19 and take
cognizance of constitutional issues due to their paramount importance. It is the Court's duty to apply
the 1987 Constitution in accordance with what it says and not in accordance with how the Legislature
or the Executive would want it interpreted.20 This Court has the final word on what the law
means.21 The Court must assure respect for the constitutional limitations embodied in the 1987
Constitution.

Interpreting Section 6(b) and (c) of PD 15

At the heart of the controversy is Section 6(b) of PD 15, as amended, which reads:
Board of Trustees. — The governing powers and authority of the corporation shall be vested in, and
exercised by, a Board of eleven (11) Trustees who shall serve without compensation.

xxxx

(b) Vacancies in the Board of Trustees due to termination of term, resignation, incapacity, death or
other cause as may be provided in the By-laws, shall be filled by election by a vote of a majority of the
trustees held at the next regular meeting following occurrence of such vacancy. The elected trustee shall
then hold office for a complete term of four years unless sooner terminated by reason of resignation,
incapacity, death or other cause. Should only one trustee survive, the vacancies shall be filled by the
surviving trustee acting in consultation with the ranking officers of the Center. Such officers shall be
designated in the Center's Code of By-Laws. Should for any reason the Board be left entirely vacant,
the same shall be filled by the President of the Philippines acting in consultation with the
aforementioned ranking officers of the Center. (Emphasis supplied)

Inextricably related to Section 6(b) is Section 6(c) which limits the terms of the trustees, as follows:

(c) No person may serve as trustee who is not a resident of the Philippines, of good moral standing in
the community and at least 25 years of age: Provided, That there shall always be a majority of the
trustees who are citizens of the Philippines. Trustees may not be reelected for more than two (2)
consecutive terms. (Emphasis supplied)

The clear and categorical language of Section 6(b) of PD 15 states that vacancies in the CCP Board shall
be filled by a majority vote of the remaining trustees. Should only one trustee survive, the
vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the
CCP. Should the Board become entirely vacant, the vacancies shall be filled by the President of the
Philippines acting in consultation with the same ranking officers of the CCP. Thus, the remaining
trustees, whether one or more, elect their fellow trustees for a fixed four-year term. On the other hand,
Section 6(c) of PD 15 does not allow trustees to reelect fellow trustees for more than two consecutive
terms.

The Power of Appointment

The source of the President's power to appoint, as well as the Legislature's authority to delegate the
power to appoint, is found in Section 16, Article VII of the 1987 Constitution which provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. (Emphasis supplied)

The power to appoint is the prerogative of the President, except in those instances when the
Constitution provides otherwise. Usurpation of this fundamentally Executive power by the Legislative
and Judicial branches violates the system of separation of powers that inheres in our democratic
republican government.22
Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers.
The first group refers to the heads of the Executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers
whose appointments are vested in the President by the Constitution. The second group refers to those
whom the President may be authorized by law to appoint. The third group refers to all other officers of
the Government whose appointments are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments
Congress may by law vest in the heads of departments, agencies, commissions, or boards. The present
case involves the interpretation of Section 16, Article VII of the 1987 Constitution with respect to the
appointment of this fourth group of officers.23

The President appoints the first group of officers with the consent of the Commission on Appointments.
The President appoints the second and third groups of officers without the consent of the Commission
on Appointments. The President appoints the third group of officers if the law is silent on who is the
appointing power, or if the law authorizing the head of a department, agency, commission, or board to
appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15 is found unconstitutional, the
President shall appoint the trustees of the CCP Board because the trustees fall under the third group of
officers.

The Scope of the Appointment Power of the Heads of

Departments, Agencies, Commissions, or Boards

The original text of Section 16, Article VII of the 1987 Constitution, as written in Resolution No. 517 24 of
the Constitutional Commission, is almost a verbatim copy of the one found in the 1935 Constitution.
Constitutional Commissioner Father Joaquin Bernas, S.J., explains the evolution of this provision and its
import, thus:

The last sentence of the first paragraph of Section 16 x x x is a relic from the 1935 and 1973
Constitutions, x x x.

Under the 1935 Constitution, the provision was: "but the Congress may by law vest the appointment of
inferior officers in the President alone, in the courts, or in the heads of departments." As already seen,
it meant that, while the general rule was that all presidential appointments needed confirmation by the
Commission on Appointments, Congress could relax this rule by vesting the power to appoint "inferior
officers" in "the President alone, in the courts, or in the heads of departments." It also meant that while,
generally, appointing authority belongs to the President, Congress could let others share in such
authority. And the word "inferior" was understood to mean not petty or unimportant but lower in rank
than those to whom appointing authority could be given.

Under the 1973 Constitution, according to which the power of the President to appoint was not limited
by any other body, the provision read: "However, the Batasang Pambansa may by law vest in members
of the Cabinet, courts, heads of agencies, commissions, and boards the power to appoint inferior
officers in their respective offices." No mention was made of the President. The premise was that the
power to appoint belonged to the President; but the Batasan could diffuse this authority by allowing it to
be shared by officers other than the President.

The 1987 provision also has the evident intent of allowing Congress to give to officers other than the
President the authority to appoint. To that extent therefore reference to the President is pointless. And
by using the word "alone," copying the tenor of the 1935 provision, it implies, it is submitted, that the
general rule in the 1935 Constitution of requiring confirmation by the Commission on Appointments
had not been changed. Thereby the picture has been blurred. This confused text, however, should be
attributed to oversight. Reference to the President must be ignored and the whole sentence must be
read merely as authority for Congress to vest appointing power in courts, in heads of departments,
agencies, commissions, or boards after the manner of the 1973 text.

Incidentally, the 1987 text, in order to eschew any pejorative connotation, avoids the phrase "inferior
officers" and translates it instead into "officers lower in rank," that is, lower in rank than the courts or
the heads of departments, agencies, commissions, or boards.25 (Emphasis supplied)

The framers of the 1987 Constitution clearly intended that Congress could by law vest the appointment
of lower-ranked officers in the heads of departments, agencies, commissions, or boards. The
deliberations26 of the 1986 Constitutional Commission explain this intent beyond any doubt.27

The framers of the 1987 Constitution changed the qualifying word "inferior" to the less disparaging
phrase "lower in rank" purely for style. However, the clear intent remained that these inferior or lower
in rank officers are the subordinates of the heads of departments, agencies, commissions, or boards who
are vested by law with the power to appoint. The express language of the Constitution and the clear
intent of its framers point to only one conclusion — the officers whom the heads of departments,
agencies, commissions, or boards may appoint must be of lower rank than those vested by law with the
power to appoint.

Congress May Vest the Authority to Appoint

Only in the Heads of the Named Offices

Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest "in the heads of
departments, agencies, commissions, or boards" the power to appoint lower-ranked officers. Section
16 provides:

The Congress may, by law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of departments, agencies, commissions, or boards. (Emphasis supplied)

In a department in the Executive branch, the head is the Secretary. The law may not authorize the
Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive
department. In an agency, the power is vested in the head of the agency for it would be preposterous
to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a
board, the head is also the chairperson of the board. In the last three situations, the law may not also
authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked
officers.

The grant of the power to appoint to the heads of agencies, commissions, or boards is a matter of
legislative grace. Congress has the discretion to grant to, or withhold from, the heads of agencies,
commissions, or boards the power to appoint lower-ranked officers. If it so grants, Congress may
impose certain conditions for the exercise of such legislative delegation, like requiring the
recommendation of subordinate officers or the concurrence of the other members of the commission
or board.

This is in contrast to the President's power to appoint which is a self-executing power vested by the
Constitution itself and thus not subject to legislative limitations or conditions. 28 The power to appoint
conferred directly by the Constitution on the Supreme Court en banc29 and on the Constitutional
Commissions30 is also self-executing and not subject to legislative limitations or conditions.
The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in
the "heads" of the specified offices, and in no other person. 31 The word "heads" refers to the
chairpersons of the commissions or boards and not to their members, for several reasons.

First, a plain reading of the last sentence of the first paragraph of Section 16, Article VII of the 1987
Constitution shows that the word "heads" refers to all the offices succeeding that term, namely, the
departments, agencies, commissions, or boards. This plain reading is consistent with other related
provisions of the Constitution.

Second, agencies, like departments, have no collegial governing bodies but have only chief executives
or heads of agencies. Thus, the word "heads" applies to agencies. Any other interpretation is
untenable.

Third, all commissions or boards have chief executives who are their heads. Since the Constitution
speaks of "heads" of offices, and all commissions or boards have chief executives or heads, the word
"heads" could only refer to the chief executives or heads of the commissions or boards.

Fourth, the counterpart provisions of Section 16, Article VII of the 1987 Constitution in the 1935 and
1973 Constitutions uniformly refer to "heads" of offices. The 1935 Constitution limited the grant of the
appointment power only to "heads of departments."32 The 1973 Constitution expanded such grant to
other officers, namely, "members of the Cabinet, x x x, courts, heads of agencies, commissions, and
boards x x x."33

If the 1973 Constitution intended to extend the grant to members of commissions or boards, it could
have followed the same language used for "members of the Cabinet" so as to state "members of
commissions or boards." Alternatively, the 1973 Constitution could have placed the words
commissions and boards after the word "courts" so as to state "members of the Cabinet, x x x, courts,
commissions and boards." Instead, the 1973 Constitution used "heads of agencies, commissions, and
boards."

Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction whenever granting the power to
appoint lower-ranked officers to members of a collegial body or to the head of that collegial body. Thus,
the 1935 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of
departments." Similarly, the 1973 Constitution speaks of "members of the Cabinet, courts, heads of
agencies, commissions, and boards."

Also, the 1987 Constitution speaks of vesting the power to appoint "in the courts, or in the heads of
departments, agencies, commissions, or boards." This is consistent with Section 5(6), Article VIII of the
1987 Constitution which states that the "Supreme Court shall x x x [a]ppoint all officials and employees
of the Judiciary in accordance with the Civil Service Law," making the Supreme Court en banc the
appointing power. In sharp contrast, when the 1987 Constitution speaks of the power to appoint
lower-ranked officers in the Executive branch, it vests the power "in the heads of departments,
agencies, commissions, or boards."

In addition, the 1987 Constitution expressly provides that in the case of the constitutional commissions,
the power to appoint lower-ranked officers is vested in the commission as a body. Thus, Section 4,
Article IX-A of the 1987 Constitution provides, "The Constitutional Commissions shall appoint their
officials and employees in accordance with law."

Sixth, the last clause of the pertinent sentence in Section 16, Article VII of the 1987 Constitution is
an enumeration of offices whose heads may be vested by law with the power to appoint lower-ranked
officers. This is clear from the framers' deliberations of the 1987 Constitution, thus:
THE PRESIDENT: Commissioner Davide is recognized.

MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,) and add
AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the enumeration in the 1935
Constitution from which this additional clause was taken.

THE PRESIDENT: Does the Committee accept?

xxxx

MR. SUMULONG: We accept the amendment.

MR. ROMULO: The Committee has accepted the amendment, Madam President.

THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES, COMMISSIONS, OR
BOARDS" on line 3, page 8? (Silence) The Chair hears none; the amendment is approved.34 (Italicization
in the original; boldfacing supplied)

As an enumeration of offices, what applies to the first office in the enumeration also applies to the
succeeding offices mentioned in the enumeration. Since the words "in the heads of" refer to
"departments," the same words "in the heads of" also refer to the other offices listed in the
enumeration, namely, "agencies, commissions, or boards."

The Chairperson of the CCP Board is the Head of CCP

The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments constitute the
Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15 provides:

Appointment of Personnel. — The Chairman, with the confirmation of the Board, shall have the power
to appoint all officers, staff and personnel of the Center with such compensation as may be fixed by the
Board, who shall be residents of the Philippines. The Center may elect membership in the Government
Service Insurance System and if it so elects, its officers and employees who qualify shall have the same
rights and privileges as well as obligations as those enjoyed or borne by persons in the government
service. Officials and employees of the Center shall be exempt from the coverage of the Civil Service
Law and Rules.

Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of the CCP is the
Chairman of its Board when it provides:

CHAIRMAN OF THE BOARD. — The Board of Trustees shall elect a Chairman who must be one of its
members, and who shall be the presiding officer of the Board of Trustees, with power among others, to
appoint, within the compensation fixed by the Board, and subject to confirmation of the Board, remove,
discipline all officers and personnel of the Center, and to do such other acts and exercise such other
powers as may be determined by the Board of Trustees. The Chairman shall perform his duties and
exercise his powers as such until such time as the Board of Trustees, by a majority vote, shall elect
another Chairman. The Chairman shall be concurrently President, unless the Board otherwise elects
another President.

Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by law, under
Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked officers of the
CCP.
Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6 of PD 15, as
amended, states:

Board of Trustees. — The governing powers and authority of the corporation shall be vested in, and
exercised by, a Board of eleven (11) Trustees who shall serve without compensation.

The CCP, being governed by a board, is not an agency but a board for purposes of Section 16, Article VII
of the 1987 Constitution.

Section 6(b) and (c) of PD 15 Repugnant to

Section 16, Article VII of the 1987 Constitution

Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of the 1987
Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the CCP Board to fill
vacancies in the CCP Board, allowing them to elect their fellow trustees. On the other hand, Section 16,
Article VII of the 1987 Constitution allows heads of departments, agencies, commissions, or boards to
appoint only "officers lower in rank" than such "heads of departments, agencies, commissions, or
boards." This excludes a situation where the appointing officer appoints an officer equal in rank as him.
Thus, insofar as it authorizes the trustees of the CCP Board to elect their co-trustees, Section 6(b) and
(c) of PD 15 is unconstitutional because it violates Section 16, Article VII of the 1987 Constitution.

It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to "elect" and not
"appoint" their fellow trustees for the effect is the same, which is to fill vacancies in the CCP Board. A
statute cannot circumvent the constitutional limitations on the power to appoint by filling vacancies in
a public office through election by the co-workers in that office. Such manner of filling vacancies in a
public office has no constitutional basis.

Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent appointing power of
their fellow trustees. The creation of an independent appointing power inherently conflicts with the
President's power to appoint. This inherent conflict has spawned recurring controversies in the
appointment of CCP trustees every time a new President assumes office.

In the present case, the incumbent President appointed the Endriga group as trustees, while the
remaining CCP trustees elected the same Endriga group to the same positions. This has been
the modus vivendi in filling vacancies in the CCP Board, allowing the President to appoint and the CCP
Board to elect the trustees. In effect, there are two appointing powers over the same set of officers in
the Executive branch. Each appointing power insists on exercising its own power, even if the two
powers are irreconcilable. The Court must put an end to this recurring anomaly.

The President's Power of Control

There is another constitutional impediment to the implementation of Section 6(b) and (c) of PD 15.
Under our system of government, all Executive departments, bureaus, and offices are under the
control of the President of the Philippines. Section 17, Article VII of the 1987 Constitution provides:

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed. (Emphasis supplied)

The presidential power of control over the Executive branch of government extends to all executive
employees from the Department Secretary to the lowliest clerk.35 This constitutional power of the
President is self-executing and does not require any implementing law. Congress cannot limit or curtail
the President's power of control over the Executive branch.36
The 1987 Constitution has established three branches of government — the Executive, Legislative and
Judicial. In addition, there are the independent constitutional bodies — like the Commission on
Elections, Commission on Audit, Civil Service Commission, and the Ombudsman. Then there are the
hybrid or quasi-judicial agencies,37 exercising jurisdiction in specialized areas, that are under the
Executive branch for administrative supervision purposes, but whose decisions are reviewable by the
courts. Lastly, there are the local government units, which under the Constitution enjoy local
autonomy38 subject only to limitations Congress may impose by law.39 Local government units are
subject to general supervision by the President.40

Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, or must be a quasi-judicial
body or local government unit. Otherwise, such government office, entity, or agency has no legal and
constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one
of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local
government unit. Thus, the CCP must fall under the Executive branch. Under the Revised
Administrative Code of 1987, any agency "not placed by law or order creating them under any specific
department" falls "under the Office of the President."41

Since the President exercises control over "all the executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which is an office in the Executive branch. In
mandating that the President "shall have control of all executive x x x offices," Section 17, Article VII of
the 1987 Constitution does not exempt any executive office — one performing executive functions
outside of the independent constitutional bodies — from the President's power of control. There is no
dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.

The President's power of control applies to the acts or decisions of all officers in the Executive branch.
This is true whether such officers are appointed by the President or by heads of departments, agencies,
commissions, or boards. The power of control means the power to revise or reverse the acts or
decisions of a subordinate officer involving the exercise of discretion.42

In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution where
an officer of the Executive branch is outside the control of the President. The Executive branch is
unitary since there is only one President vested with executive power exercising control over the entire
Executive branch.43 Any office in the Executive branch that is not under the control of the President is a
lost command whose existence is without any legal or constitutional basis.

The Legislature cannot validly enact a law that puts a government office in the Executive branch
outside the control of the President in the guise of insulating that office from politics or making it
independent. If the office is part of the Executive branch, it must remain subject to the control of the
President. Otherwise, the Legislature can deprive the President of his constitutional power of control
over "all the executive x x x offices." If the Legislature can do this with the Executive branch, then the
Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of
certain lower courts beyond the review power of the Supreme Court. This will destroy the system of
checks and balances finely structured in the 1987 Constitution among the Executive, Legislative, and
Judicial branches.

Of course, the President's power of control does not extend to quasi-judicial bodies whose proceedings
and decisions are judicial in nature and subject to judicial review, even as such quasi-judicial bodies
may be under the administrative supervision of the President. It also does not extend to local
government units, which are merely under the general supervision of the President.

Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies in the
Board, runs afoul with the President's power of control under Section 17, Article VII of the 1987
Constitution. The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from political influence
and pressure, specifically from the President.44 Section 6(b) and (c) of PD 15 makes the CCP a
self-perpetuating entity, virtually outside the control of the President. Such a public office or board
cannot legally exist under the 1987 Constitution.

Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy and operation x x
x."45 This provision does not free the CCP from the President's control, for if it does, then it would be
unconstitutional. This provision may give the CCP Board a free hand in initiating and formulating
policies and undertaking activities, but ultimately these policies and activities are all subject to the
President's power of control.

The CCP is part of the Executive branch. No law can cut off the President's control over the CCP in the
guise of insulating the CCP from the President's influence. By stating that the "President shall have
control of all the executive x x x offices," the 1987 Constitution empowers the President not only to
influence but even to control all offices in the Executive branch, including the CCP. Control is far greater
than, and subsumes, influence.

WHEREFORE, we GRANT the petition in G.R. No. 139554. We declare UNCONSTITUTIONAL Section 6(b)
and (c) of Presidential Decree No. 15, as amended, insofar as it authorizes the remaining trustees to fill
by election vacancies in the Board of Trustees of the Cultural Center of the Philippines. In view of this
ruling in G.R. No. 139554, we find it unnecessary to rule on G.R. No. 139565.

SO ORDERED.

G.R. No. 191002 April 20, 2010

ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191032

JAIME N. SORIANO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE

JUDICIARY, ESTELITO P. MENDOZA, Petitioner,

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191149

JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF
PEOPLE’S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in
his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG
ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL
RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG
KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS;
TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES
MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA.
CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL
LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-JAVELLANA;
BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA;
MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL,
JR.; Intervenors.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING
(IBP Governor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.

RESOLUTION

BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and
the petition for mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on
or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary
and submit to the President the short list of nominees corresponding thereto in accordance with this
decision.

SO ORDERED.

Motions for Reconsideration

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No.
191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the
Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera;
Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello
and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration. Also filing a
motion for reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was
allowed.

We summarize the arguments and submissions of the various motions for reconsideration, in the
aforegiven order:

Soriano

1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to
designate the Chief Justice belonged to the Supreme Court en banc.

2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment
and did not involve a justiciable controversy.

3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief
Justice sits as ex officio head of the JBC should not prevail over the more compelling state interest for
him to participate as a Member of the Court.
 Tolentino and Inting

1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial
appointments from the express ban on midnight appointments.

2. In excluding the Judiciary from the ban, the Court has made distinctions and has created exemptions
when none exists.

3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an
executive, not a judicial, power.

4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to vary
the terms of the clear prohibition.

5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court
has raised the Constitution to the level of a venerated text whose intent can only be divined by its
framers as to be outside the realm of understanding by the sovereign people that ratified it.

6. Valenzuela should not be reversed.

7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal
composition of the JBC.

Philippine Bar Association

1. The Court’s strained interpretation of the Constitution violates the basic principle that the Court
should not formulate a rule of constitutional law broader than what is required by the precise facts of
the case.

2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to
apply it. The provision expressly and clearly provides a general limitation on the appointing power of
the President in prohibiting the appointment of any person to any position in the Government without
any qualification and distinction.

3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight
appointments.

4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight
appointments, and the creation of the JBC. It is not within the authority of the Court to prefer one over
the other, for the Court’s duty is to apply the safeguards as they are, not as the Court likes them to be.

5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting
the Constitution.

6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents
on statutory construction holding that such headings carried very little weight.

7. The Constitution has provided a general rule on midnight appointments, and the only exception is
that on temporary appointments to executive positions.

8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the
candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Puno with a
view to submitting the list of nominees for Chief Justice to President Arroyo on or before May 17, 2010.
The Constitution grants the Court only the power of supervision over the JBC; hence, the Court cannot
tell the JBC what to do, how to do it, or when to do it, especially in the absence of a real and justiciable
case assailing any specific action or inaction of the JBC.

9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.

10. The constitutional ban on appointments being already in effect, the Court’s directing the JBC to
comply with the decision constitutes a culpable violation of the Constitution and the commission of an
election offense.

11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously formulated
by the Court en banc.

12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent is
indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary.

13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong the
outgoing President’s powers by means of proxies. The attempt of the incumbent President to appoint
the next Chief Justice is undeniably intended to perpetuate her power beyond her term of office.

IBP-Davao del Sur, et al.

1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to appointments
to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the Valenzuela
pronouncement.

2. Section 16, Article VII of the Constitution provides for presidential appointments to the
Constitutional Commissions and the JBC with the consent of the Commission on Appointments. Its
phrase "other officers whose appointments are vested in him in this Constitution" is enough proof that
the limitation on the appointing power of the President extends to appointments to the Judiciary. Thus,
Section 14, Section 15, and Section 16 of Article VII apply to all presidential appointments in the
Executive and Judicial Branches of the Government.

3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief Justice
in all cases.

Lim

1. There is no justiciable controversy that warrants the Court’s exercise of judicial review.

2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court
and to other appointments to the Judiciary.

3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article VII
against midnight appointments in the Judiciary.

Corvera

1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on midnight
appointments is based on an interpretation beyond the plain and unequivocal language of the
Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and
Judicial Departments. The application of the principle of verba legis (ordinary meaning) would have
obviated dwelling on the organization and arrangement of the provisions of the Constitution. If there is
any ambiguity in Section 15, Article VII, the intent behind the provision, which is to prevent political
partisanship in all branches of the Government, should have controlled.

3. A plain reading is preferred to a contorted and strained interpretation based on

compartmentalization and physical arrangement, especially considering that the Constitution must be
interpreted as a whole.

4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution
should yield to the plain and unequivocal language of the Constitution.

5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with
the Constitution.

BAYAN, et al.

1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present
a justiciable controversy. The issues it raised were not yet ripe for adjudication, considering that the
office of the Chief Justice was not yet vacant and that the JBC itself has yet to decide whether or not to
submit a list of nominees to the President.

2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of
Justice Regalado.

3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has violated
the principle of ut magis valeat quam pereat (which mandates that the Constitution should be
interpreted as a whole, such that any conflicting provisions are to be harmonized as to fully give effect
to all). There is no conflict between the provisions; they complement each other.

4. The form and structure of the Constitution’s titles, chapters, sections, and draftsmanship carry little
weight in statutory construction. The clear and plain language of Section 15, Article VII precludes
interpretation.

Tan, Jr.

1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and
interests in the present case are merely anticipated. Even if it is anticipated with certainty, no actual
vacancy in the position of the Chief Justice has yet occurred.

2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary runs
in conflict with long standing principles and doctrines of statutory construction. The provision admits
only one exception, temporary appointments in the Executive Department. Thus, the Court should not
distinguish, because the law itself makes no distinction.

3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on
midnight appointments to cover the members of the Judiciary. Hence, giving more weight to the
opinion of Justice Regalado to reverse the en banc decision in Valenzuela was unwarranted.

4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill
any vacancy lasts until August 15, 2010, or a month and a half after the end of the ban. The next
President has roughly the same time of 45 days as the incumbent President (i.e., 44 days) within which
to scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more than enough
opportunity to examine the nominees without haste and political uncertainty.1avvphi1

5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is
suspended.

6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The
directive to the JBC sanctions a culpable violation of the Constitution and constitutes an election
offense.

7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en banc,
even when it acts as the sole judge of all contests relative to the election, returns and qualifications of
the President and Vice-President. Fourteen other Members of the Court can validly comprise the
Presidential Electoral Tribunal.

WTLOP

1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief Justice
to the President on or before May 17, 2010, and to continue its proceedings for the nomination of the
candidates, because it granted a relief not prayed for; imposed on the JBC a deadline not provided by
law or the Constitution; exercised control instead of mere supervision over the JBC; and lacked
sufficient votes to reverse Valenzuela.

2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory
construction to the effect that the literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law does not distinguish.

3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948
already provides that the power and duties of the office devolve on the most senior Associate Justice in
case of a vacancy in the office of the Chief Justice.

Ubano

1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation

2. The Constitution must be construed in its entirety, not by resort to the organization and
arrangement of its provisions.

3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent
records of the Constitutional Commission are clear and unambiguous.

4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17,
2010 at the latest, because no specific law requires the JBC to submit the list of nominees even before
the vacancy has occurred.

Boiser

1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the
temporary appointment to an executive position. The limitation is in keeping with the clear intent of
the framers of the Constitution to place a restriction on the power of the outgoing Chief Executive to
make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments makes
the appointee beholden to the outgoing Chief Executive, and compromises the independence of the
Chief Justice by having the outgoing President be continually influential.

3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the principle of stare
decisis.

Bello, et al.

1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is
prohibited from making within the prescribed period. Plain textual reading and the records of the
Constitutional Commission support the view that the ban on midnight appointments extends to judicial
appointments.

2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must
first act not in accord with prescribed rules before the act can be redone to conform to the prescribed
rules.

3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present
a justiciable controversy.

Pimentel

1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the
general intent of the Constitution as a limitation to the powers of Government and as a bastion for the
protection of the rights of the people. Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that protects the citizenry from an ever
expanding grant of authority to its representatives.

2. The decision expands the constitutional powers of the President in a manner totally repugnant to
republican constitutional democracy, and is tantamount to a judicial amendment of the Constitution
without proper authority.

Comments

The Office of the Solicitor General (OSG) and the JBC separately represent in their respective
comments, thus:

OSG

1. The JBC may be compelled to submit to the President a short list of its nominees for the position of
Chief Justice.

2. The incumbent President has the power to appoint the next Chief Justice.

3. Section 15, Article VII does not apply to the Judiciary.

4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on
midnight appointments.1awph!1

5. The Court has the duty to consider and resolve all issues raised by the parties as well as other related
matters.
 JBC

1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not yet
decided at the time the petitions were filed whether the incumbent President has the power to
appoint the new Chief Justice, and because the JBC, having yet to interview the candidates, has not
submitted a short list to the President.

2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the
President to appoint a Chief Justice should be struck down as bereft of constitutional and legal basis.
The statement undermines the independence of the JBC.

3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate
and its implementing rules and regulations.

For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG
and the JBC were the only ones the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated and which the Court resolved.
His comment asserts:

1. The grounds of the motions for reconsideration were already resolved by the decision and the
separate opinion.

2. The administrative matter he brought invoked the Court’s power of supervision over the JBC as
provided by Section 8(1), Article VIII of the Constitution, as distinguished from the Court’s adjudicatory
power under Section 1, Article VIII. In the former, the requisites for judicial review are not required,
which was why Valenzuela was docketed as an administrative matter. Considering that the JBC itself
has yet to take a position on when to submit the short list to the proper appointing authority, it has
effectively solicited the exercise by the Court of its power of supervision over the JBC.

3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the Constitution.

4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice
Carpio Morales, as well as in some of the motions for reconsideration do not refer to either Section 15,
Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism).

Ruling

We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and
argued, not being new, have all been resolved by the decision of March 17, 2010.

Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and
emphasis.

First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly
insist that the Court has erred in disobeying or abandoning Valenzuela.1

The contention has no basis.

Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere
to precedent and not to unsettle things that are settled. It simply means that a principle underlying the
decision in one case is deemed of imperative authority, controlling the decisions of like cases in the
same court and in lower courts within the same jurisdiction, unless and until the decision in question is
reversed or overruled by a court of competent authority. The decisions relied upon as precedents are
commonly those of appellate courts, because the decisions of the trial courts may be appealed to
higher courts and for that reason are probably not the best evidence of the rules of law laid down. 2

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to
them.3 In a hierarchical judicial system like ours, the decisions of the higher courts bind the lower
courts, but the courts of co-ordinate authority do not bind each other. The one highest court does not
bind itself, being invested with the innate authority to rule according to its best lights.4

The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the
Court, especially with a new membership, is not obliged to follow blindly a particular decision that it
determines, after re-examination, to call for a rectification.5 The adherence to precedents is strict and
rigid in a common-law setting like the United Kingdom, where judges make law as binding as an Act of
Parliament.6 But ours is not a common-law system; hence, judicial precedents are not always strictly
and rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent in
a subsequent case only when its reasoning and justification are relevant, and the court in the latter
case accepts such reasoning and justification to be applicable to the case. The application of the
precedent is for the sake of convenience and stability.

For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed,
and that its wisdom should guide, if not control, the Court in this case is, therefore, devoid of
rationality and foundation. They seem to conveniently forget that the Constitution itself recognizes the
innate authority of the Court en banc to modify or reverse a doctrine or principle of law laid down in
any decision rendered en banc or in division.7

Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional
Commission extended to the Judiciary the ban on presidential appointments during the period stated
in Section 15, Article VII.

The deliberations that the dissent of Justice Carpio Morales quoted from the records of the
Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII, but
only Section 13, Article VII, a provision on nepotism. The records of the Constitutional Commission
show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices related to
the President within the fourth civil degree of consanguinity or affinity among the persons whom the
President might not appoint during his or her tenure. In the end, however, Commissioner Davide, Jr.
withdrew the proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any further
complication,"8 such that the final version of the second paragraph of Section 13, Article VII even
completely omits any reference to the Judiciary, to wit:

Section 13. xxx

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President
shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office
of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices,
including government-owned or controlled corporations and their subsidiaries.

Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court either ignored or refused to apply many
principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their avowed
reliance on the principles of statutory construction.

For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of
the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the
principle of verba legis. That is self-contradiction at its worst.

Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section 9, both
of Article VIII, the express applicability of the ban under Section 15, Article VII during the period
provided therein, despite the silence of said provisions thereon. Yet, construction cannot supply the
omission, for doing so would generally constitute an encroachment upon the field of the Constitutional
Commission. Rather, Section 4(1) and Section 9 should be left as they are, given that their meaning is
clear and explicit, and no words can be interpolated in them.9 Interpolation of words is unnecessary,
because the law is more than likely to fail to express the legislative intent with the interpolation. In
other words, the addition of new words may alter the thought intended to be conveyed. And, even
where the meaning of the law is clear and sensible, either with or without the omitted word or words,
interpolation is improper, because the primary source of the legislative intent is in the language of the
law itself.10

Thus, the decision of March 17, 2010 has fittingly observed:

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President
making appointments within two months before the next presidential elections and up to the end of
the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to
suit the purposes of any quarter.

Final Word

It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a majority
of them are now granting to her the authority to appoint the successor of the retiring Chief Justice.

The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any
claim to the contrary proceeds from malice and condescension. Neither the outgoing President nor the
present Members of the Court had arranged the current situation to happen and to evolve as it has.
None of the Members of the Court could have prevented the Members composing the Court when she
assumed the Presidency about a decade ago from retiring during her prolonged term and tenure, for
their retirements were mandatory. Yet, she is now left with an imperative duty under the Constitution
to fill up the vacancies created by such inexorable retirements within 90 days from their occurrence.
Her official duty she must comply with. So must we ours who are tasked by the Constitution to settle
the controversy.

ACCORDINGLY, the motions for reconsideration are denied with finality.

SO ORDERED.