B) La reforma del precepto
III. El cálculo de la legítima
Appointing Power; Acting vs. Permanent Appointment (2003)
No V - What is the nature of an "acting appointment" to a government office? Does such an appointment give the appointee the right to claim that the appointment will, in time, ripen into a permanent one? Explain.
SUGGESTED ANSWER:
According to Sevilla v. Court of Appeals. 209 SCRA 637 [1992], an acting appointment is merely temporary. As held in Marohombsar v.
Alonto, 194 SCRA 390 [1991], a temporary appointment cannot become a permanent appointment, unless a new appointment which is permanent is made. This holds true unless the acting appointment was made because of a temporary vacancy. In such a case, the temporary appointee holds office until the assumption of office by the permanent appointee.
Appointing Power; ad interim appointments (1991)
No. 3: - On 3 May 1992, while Congress is on a short recess for the elections, the president appoints Renato de Silva to the rank of General (4-star) in the Armed Forces. She also designates him as Chief of Staff of the AFP. He immediately takes his oath and assumes that office, with the rank of 4-star General of the AFP.
When Congress resumes its session on 17 May 1992, the Commission on Appointments informs the Office of the President that it has received from her office only the appointment of De Silva to the rank of 4-star General and that unless his appointment to the Office of the Chief of Staff of the AFP is also submitted, the Commission will not act on the matter.
The President maintains that she has submitted to the Commission all that the Constitution calls for.(a) Who is correct?
(b) Did Gen. de Silva violate the Constitution in immediately assuming office prior to a
confirmation of his appointment?
(c) Are the appointment and designation valid?
SUGGESTED ANSWER:
(a) The President is correct. Under Presidential Decree No. 360, the grade of four-star general is conferred only upon the Chief of Staff. Hence, the appointment of Renato de Silva as a four-star general must be deemed to carry with it his appointment as Chief of Staff of the AFP, (b) Gen. Renato de Silva did not violate the Constitution when he immediately assumed office before the confirmation of his appointment, since his appointment was an ad interim appointment.
Under Article VI I, Sec. 16 of the Constitution, such appointment is immediately effective and is subject only to disapproval by the Commission on
Appointments or as a result of the next adjournment of the Congress.
(c) The appointment and designation of Gen. de Silva are valid for reasons given above. However, from another point of view they are not valid because they were made within the period of the ban for making appointments. Under Article VII, Sec. 15 the President is prohibited from making appointments within the period of two (2) months preceding the election for President and Vice President. The appointment in this case will be made on May 3, 1992 which is just 8 days away from the election for President and Vice President on May 11, 1992. For this reason the appointment and designation of Gen. de Silva are after all invalid.
[Note: May 3, 1991 and May 17, 1992 are Sundays. However the Committee finds no relevance in the fact that these are holidays and therefore decided to ignore this fact.]
Appointing Power; Ad Interim Appointments (1994)
No. 16; In December 1988, while Congress was in recess, A was extended an ad interim
appointment as Brigadier General of the Philippine Army, in February 1989. When Congress was in session, B was nominated as Brigadier General of the Philippine Army. B's nomination was confirmed on August 5, 1989 while A's appointment was confirmed on
September 5, 1989. Who is deemed more senior of the two, A or B? Suppose Congress adjourned without the
Commission on Appointments acting on both appointments, can A and B retain their original ranks of colonel?
SUGGESTED ANSWER:
1) A is senior to B. In accordance with the ruling in Summers vs. Ozaeta. 81 Phil. 754, the ad interim appointment extended to A is permanent and is effective upon his acceptance although it is subject to confirmation by the Commission on Appointments.
2) If Congress adjourned without the appointments of A and B having been confirmed by the Commission on Appointments, A cannot return to his old position. As held in Summers vs. Qzaeta, 81 Phil. 754, by accepting an ad interim appointment to a new position, A waived his right to hold his old position. On the other hand, since B did not assume the new position, he retained his old position.
Appointing Power; Appointments Requiring Confirmation; RA 6975-Unconstitutional (2002) No V - On December 13, 1990, the President signed into law Republic Act No. 6975 (subsequently amended by RA No. 8551) creating the Department of Interior and Local Government.
Sections 26 and 31 of the law provide that senior officers of the Philippine National Police (PNP), from Senior Superintendent, Chief Superintendent, Deputy Director General to Director General or Chief of PNP shall, among others, be appointed by the President subject to confirmation by the Commission on Appointments.
In 1991 the President promoted Chief Superintendent Roberto Matapang and Senior Superintendent Conrado Mahigpit to the positions of Director and Chief Superintendent of the PNP, respectively. Their appointments were in a permanent capacity. Without undergoing confirmation by the Commission on Appointments, Matapang and Mahigpit took their oath of office and assumed their respective positions. Thereafter, the Department of Budget and Management authorized disbursements for their salaries and other emoluments.
Juan Bantay filed a taxpayer's suit questioning the legality of the appointments and disbursements made. Bantay argues that the appointments are invalid inasmuch as the same have not been confirmed by the Commission on Appointments, as required under Sections 26 and 31 of R.A. No.
6975.
Determine with reasons the legality of the appointments and the disbursements for salaries by discussing the constitutional validity of Sections 26 and 31 of R.A. No. 6975. (5%)
SUGGESTED ANSWER:
The appointments of Matapang and Mahigpit are valid even if they were not confirmed by the Commission on Appointments, because they are not among the public officials whose appointments are required to be confirmed by the first sentence of Article VII, Section 16 of the Constitution.
According to Manalo v. Sistoza, 312 SCRA 239 (1999), Sections 26 and 31 of Republic Act 6975 are unconstitutional, because Congress cannot by law expand the list of public officials required to be confirmed by the Commission on Appointments.
Since the appointments of Matapang and Mahigpit are valid, the disbursements of their salaries and emoluments are valid.
Appointing Power; Categories of Officials (1999)
A. 1.) What are the six categories of officials who are subject to the appointing power of the President? (2%)
2.) Name the category or categories of officials whose appointments need confirmation by the Commission on Appointments? (2%)
SUGGESTED ANSWER:
Under Section 16, Article VII of the Constitution, the six categories of officials who are subject to the appointing power of the President are the following:
1 Head of executive departments;
2 Ambassadors, other public ministers and consuls;
3 Officers of the armed forces from the rank of colonel or naval captain;
4 Other officers whose appointments are vested in him by the Constitution;
5 All other officers of the government whose appointments are not otherwise provided by law; and 6 Those whom he may be authorized by law to appoint. (Cruz, Philippine Political Law, 1998 ed., pp.
204-205)
(It is suggested that if the examinee followed the classification in Sarmiento v. Mison, 156 SCRA 549 and named only four categories, because he combined the first three categories into one, he be given full credit.)
2.) According to Sarmiento v. Mison, 156 SCRA 549, the only officers whose appointments need
confirmation by the Commission on Appointments are the head of executive departments,
ambassadors, other public ministers and consuls, officers of the armed forces from the rank of
colonel or naval captain, and other officials whose appointments are
vested in the President by the Constitution.
Appointing Power; Kinds of Appointments (1994)
When is an appointment in the civil service permanent? Distinguish between an
"appointment in an
acting capacity" extended by a Department Secretary from an ad interim appointment extended by the President. Distinguish between a provisional and a
temporary appointment.SUGGESTED ANSWER: 1) Under Section 25(a) of the Civil Service Decree, an appointment in the civil service is PERMANENT when issued to a person who meets all the requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.
2) An appointment in an ACTING CAPACITY extended by a Department Secretary is not permanent but temporary. Hence, the Department Secretary may terminate the services of the appointee at any time. On the other hand, an AD INTERIM APPOINTMENT extended by the President is an appointment which is subject to confirmation by the Commission on Appointments and was made during the recess of Congress. As held in Summers vs. Qzaeta, 81 Phil. 754, an ad interim appointment is permanent.
3) In Section 24 (d) of the Civil Service Act of 1959, a TEMPORARY APPOINTMENT is one issued to a person to a position needed only for a limited period not exceeding six months. Under Section 25(b) of the Civil Service Decree, a temporary appointment is one issued to a person who meets all the requirements for the position to which he is being appointed except the
appropriate civil service eligibility because of the absence of appropriate eligibles and it is
necessary in the public Interest to fill the vacancy.
On the other hand. Section 24(e) of the Civil Service Act of 1959 defined a PROVISIONAL
APPOINTMENT as one Issued upon the prior authorization of the Civil Service Commission in accordance with its provisions and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the
requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.
Provisional appointments in general have already been abolished by Republic Act 6040. However, it still applies with regard to teachers under the Magna Carta for Public School Teachers.
ALTERNATIVE ANSWER:
The case of Regis vs. Osmena, 197 SCRA 308, laid down the distinction between a provisional and a temporary appointment.
A PROVISIONAL APPOINTMENT is extended to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligible at the time of the appointment.
On the other hand, a TEMPORARY APPOINTMENT given to a non-civil service eligible is without a definite tenure and is dependent on the pleasure of the appointing power.
A provisional appointment is good only until replacement by a civil service eligible and in no case beyond 30 days from date of receipt by the appointing officer of the certificate of eligibility.
(Sec. 24 [c|. Republic Act 2260).
A provisional appointment contemplates a different situation from that of a temporary appointment.
Whereas a temporary appointment is designed to fill a position needed only for a limited period not exceeding six (6) months, a provisional appointment, on the other hand, is intended for the contingency that "a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of the appointment."
In other words, the reason for extending a provisional appointment is not because there is an occasional work to be done and is expected
to be finished in not more than six months but because the interest of the service requires that certain work be done by a regular employee, only that no one with appropriate eligibility can be appointed to it. Hence, any other eligible may be appointed to do such work in the meantime that a suitable eligible does not qualify for the position.
To be more precise, a provisional appointment may be extended only to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, meaning one who must any way be a civil service eligible.
In the case of a temporary appointment, all that the law enjoins is that "preference in filling such position be given to persons on appropriate eligible lists." Merely giving preference presupposes that even a non-eligible may be appointed. Under the law, even if the appointee has the required civil service eligibility, his appointment is still temporary simply because such is the nature of the work to be done.
NOTE: Since provisional appointments have already been abolished examinees should be given full credit for whatever answer they may or may not give.
Appointing Power; Limitations on Presidential Appointments (1997)
No. 7: A month before a forthcoming election, "A"
one of the incumbent Commissioners of the COMELEC, died while in office and "B", another Commissioner, suffered a severe stroke. In view of the proximity of the elections and to avoid paralyzation in the COMELEC, the President who was not running for any office, appointed Commissioner C of the Commission on Audit, who was not a lawyer but a certified public accountant by profession, ad interim Commissioner to succeed Commissioner A and designated by way of a temporary measure.
Associate Justice D of the Court of Appeals as acting Associate Commissioner during the absence of Commissioner B.
Did the President do the right thing in extending such ad interim appointment in favor of Commissioner C and designating Justice D acting Commissioner of the COMELEC?
SUGGESTED ANSWER:
No. The President was wrong in extending an ad interim appointment in favor of Commissioner C. In Summers vs. Ozaeta, 81 Phil. 754, it was held that an ad interim appointment is a permanent appointment.
Under Section 15, Article VII of the Constitution, within two months immediately before the next presidential elections and up to the end of his term, the President cannot make permanent appointments. The designation of Justice D as acting Associate Commissioner is also invalid.
Section 1(2). Article IX-C of the Constitution prohibits the designation of any Commissioner of the COMELEC in a temporary or acting capacity.
Section 12, Article VIII of the Constitution prohibits the designation of any member of the Judiciary to any agency performing quasi-judicial or
administrative functions.
Appointing Powers; Ad Interim Appointments (Q4-2005)
(1) In March 2001, while Congress was adjourned, the President appointed Santos as Chairman of the COMELEC. Santos immediately took his oath and assumed office. While his appointment was promptly submitted to the Commission on Appointments for confirmation, it was not acted upon and Congress again
adjourned. In June 2001, the President extended a second ad interim appointment to Santos for the same position with the same term, and this appointment was again submitted to the Commission on Appointments for confirmation.
Santos took his oath anew and performed the functions of his office.
Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned the validity of Santos' appointment.
Resolve the following issues: (5%)
(a) Does Santos' assumption of office on the basis of the ad interim appointments issued by the President amount to a temporary
appointment which is prohibited by Section 1(2), Article IX-C of the Constitution?
ALTERNATIVE ANSWER:
No, Santos' appointment does not amount to a temporary appointment. 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. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. (Matibag v. Benipayo, G.R.
No. 149036, April 2, 2002) ALTERNATIVE ANSWER:
An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L65439, November 13,1985)
(b) Assuming the legality of the first ad interim appointment and assumption of office by Santos, were his second ad interim appointment and subsequent assumption of office to the same position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the Constitution?
SUGGESTED ANSWER:
No, the second ad interim appointment and subsequent assumption of office does not violate the Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution does not apply to by-passed ad interim appointments. It 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. 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. To hold otherwise will lead to absurdities and negate the President's power to make ad interim appointments. (Matibag v. Benipayo, G.R. No.
149036, April 2, 2002)
Cabinet Members; limitation on accepting additional duties (1996)
1996 No. 7: Can the Secretary of Finance be elected Chairman of the Board of Directors of the San Miguel Corporation? Explain.
SUGGESTED ANSWER:
No, the Secretary of Finance cannot be elected Chairman of the Board of Directors of the San Miguel Corporation. Under Section 13, Article VII of the Constitution, members of the Cabinet cannot hold any other office or employment during their tenure unless it is otherwise provided in the Constitution. They shall not also during said tenure participate in any business or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
Calling-out Power; President (Q1-2006)
1. What do you mean by the "Calling-out Power" of the President under Section 18, Article VII of the Constitution? (5%)
SUGGESTED ANSWER:
Under Article VII, Sec. 18 of the 1987 Constitution, whenever it becomes necessary, the President, as Commander-in-Chief, may call out the armed forces to aid him in preventing or suppressing lawless violence, invasion or rebellion (David v. Arroyo, G.R. No. 171396, May 3, 2006).
Declaration; State of Calamity; Legal Effects (Q1-2005)
(b) To give the much needed help to the Province of Aurora which was devastated by typhoons and torrential rains, the President declared it in a "state of calamity." Give at least four (4) legal effects of such declaration. (4%) SUGGESTED ANSWER:
Declaration of a state of calamity produces, inter alia, these legal effects within the Province of Aurora —
1. Automatic Price Control — under R.A.
No. 7581, The Price Act;
2. Authorization for the importation of rice under R.A. No. 8178, The Agricultural
Tarrification Act;
3. Automatic appropriation under R.A. No.
7160 is available for unforeseen expenditures arising from the occurrence of calamities in areas declared to be in a state of calamity;
4. Local government units may enact a supplemental budget for supplies and materials or
4. Local government units may enact a supplemental budget for supplies and materials or