Enfrentando el diagnóstico, se inicia el proceso de duelo

Facts: Chief Justice Reynato S. Puno had his compulsory retirement on May 17, 2010, seven days after the coming Presidential Elections on May 10, 2010.Under Section 4(1), in relation to Section 9, Article VIII, that "vacancy shall be filled within ninety days from the occurrence thereof" from a "list of at least three nominees prepared by the Judicial and Bar Council for every vacancy."The provision above is in conflict with Section 15, Article VII (Executive Department), which provides that “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President

shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno. The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star. On February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales,Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.

Issue: Whether or not Section 15, Article VII apply to appointments in the Supreme Court or to the Judiciary.

Ruling: No. Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary. The Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy. Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable

on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.

SECTION 16

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.

He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

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

RAFAEL V EMBROIDERY

FACTS:

Petitioner is a businessman engaged in the business of exporting embroidery and apparel products. He is a member of the Philippine Chamber of Embroidery and Apparel Producers Inc. (PCEAP).

Meanwhile, RA 3137 was enacted by Congress creating the “Apparel Control and Inspection Board”.

Pursuant to such law, license is required before raw materials are imported.

Section 2 of said law provides the composition of the Board. Among them are (1) representative of customs to be appointed by the Finance Sec. (2) representative of the Central Bank appointed by the Governor (3) representative of the Dept. of Commerce to be appointed by the Commerce Sec.

(4) representative from the National Economic Council (5) representative from the private sector coming from the Association of Embroidery and Apparel Exporters of the Philippines

Upon recommendation by the Philippine Association of Embroidery and Apparel Exporters Inc. (PAEAE), Quintin Santiago, president of such association, was appointed as representative of the private sector.

Petitioner now contests this appointment saying that the law does not say that the association mentioned

in (5) is PAEAE. Apparently, petitioner was sour graping because PCEAP’s nominee was not chosen.

Because of this, the Board issued a resolution clarifying the matter and said the (5) above only refers to PAEAE.

Petitioner contends that RA 3137 is unconstitutional because when Congress already defined who are to be appointed as members of the Board, it effectively deprived the President his power to appoint.

ISSUE:

Whether or not RA 3137 deprives the president of his appointing powers

Whether or not (5) above is a form of class legislation as it favors one organization over the other

HELD:

NO. No new appointments were made by Congress because, as can be seen, all of the members of the Board should come from specified government agencies already and must be appointed by their respective dept. heads. Their appointment in the Board is only in an “ex-officio” capacity. It is a detail of additional work arising from the office subject to recall by their heads.

NO. PAEAE was selected to be the representative of the private sector not because it is favored by law but because it is the dominant organization in the industry. Besides, no privileges are accorded to PAEAE which are not similarly given to non-PAEAE members.

BERMUDEZ V TORRES

Facts: Petitioner Oscar Bermudez, the First Assistant Provincial Prosecutor of Tarlac and Officer-in-Charge of the Office of Provincial Prosecutor, was a recommendee of then Sec. of Justice Guingona for the position of Provincial Prosecutor. Private respondent Atty. Conrado Quiaoit had the support of then Representative Yap of the Second District of Tarlac. Quiaoit was appointed by Pres.

Ramos to the office. Quiaoit took his oath and assumed office. Bermudez refused to vacate the Office of the Provincial Prosecutor. Nonetheless, Quiaoit, performed the duties and functions of the Office of Provincial Prosecutor. Petitioner Bermudez challenged the appointment of Quiaoit primarily on the ground that the appointment lacks the recommendation of the Sec. Of Justice prescribed under the Revised Administrative Code of 1987. Section 9, Chap. II, Title III, Book IV of the Revised Administrative Code provides that “all provincial and city prosecutors and their assistants shall be appointed by the Pres. upon the recommendation of the Secretary.”

Issue: Whether or not the absence of a recommendation of the Secretary of Justice to the President can be held fatal to the appointment of Quiaoit

Held: An appointment to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective.

The power to appoint is, in essence, discretionary. The appointing authority has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities.

When the Constitution or the law clothes the Pres. with the power to appoint a subordinate officer, such conferment must be understood as necessarily carrying with it an ample discretion of whom to appoint. The Pres.

is the head of government whose authority includes the power of control over all “executive departments, bureaus and offices.” Control means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the performance of his duties, as well as to substitute the judgment of the latter, as and when the former deems it to be appropriate. The Pres. has the power to assume directly the functions of an executive department, bureau and office. It can therefore be inferred that the Pres. can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations.

The phrase “upon recommendation of the Secretary” found in Sec. 9, Chap. II, Title III, Book IV of the Revised Administrative Code should be interpreted to be a mere advice, exhortation or indorsement, which is essentially persuasive in character and not binding or obligatory upon the party to whom it is made. The recommendation is here nothing really more than advisory in nature. The Pres., being the head of the Executive Department, could very well disregard or do away with the action of the departments, bureaus or offices even in the exercise of discretionary authority, and in so opting, he cannot be said as having acted beyond the scope of his authority.

SARMIENTO v. MISON

Facts: Petitioners seek to enjoin Mison from performing his functions as Commissioner of the Bureau of Customs and Carague, as Secretary of the Department of Budget,

from effecting disbursement in payment of Mison’s salaries and emoluments. They allege that Mison’s appointment is unconstitutional because it was not confirmed by the Commission on Appointments (CA).

Mison, on the other hand, maintain the constitutionality of the appointment.

Issue: Does the appointment of the Commissioner of the Bureau of Customs need confirmation of the Commission on Appointments? - NO

Ratio: Under Sec. 16 of Art. VII, the President is to appoint 4 groups of officers:

1. Heads of the executive departments, ambassadors, other public minister and consuls, officer so the AFP from the rank of colonel or naval captain, and other officers whose appointments are vested in him by the Constitution;

2. All other officers of the Government whose appointments are not otherwise provided by law;

3. Those whom the President may be authorized by law to appoint;

4. Officers lower in rank whose appointments the Congress may by law vest in the President alone.

The first group is appointed with the consent of the CA. Appointments of such officers are initiated by nomination and if confirmed by the CA, the President appoints. Following the rule in constitutional and statutory construction, it would follow that only appointments for these positions require the consent of the CA (since it is only the first sentence that is qualified by “with the consent of the Commission on Appointments”).

The SC also relied on the historical background and records of the Constitutional Commission. In the 1935 Constitution, almost all presidential appointments required the consent of the CA. But such power became a venue of “horse-trading” and similar malpractices. Under the 1973 Constitution, the President had the absolute power of appointment with hardly any check on the part of the legislature. Given these 2 extremes, the framers of the 1987 Constitution struck a middle ground by requiring the consent or confirmation of the CA for the first group of appointments and leaving to the President the appointment of officers belonging to the other groups without need of such confirmation.

In the course of the debates on the text of Sec.

16, two major changes were introduced and approved: 1) the exclusion of the appointments of head of bureaus from the requirement of confirmation by the CA, and 2) the exclusion of appointments made under the second sentence of the section from the same requirement. The reason is the position of bureau director is quite low in the

executive department. To require further confirmation would subject them to political influence.

The power to appoint is fundamentally executive or presidential in character. Limitation on or qualifications of such power should be strictly construed against them.

Such limitations must be clearly stated in order to be recognized. It is only in the first sentence of Sec. 16 where it is clearly stated that appointments by the President to those positions require the confirmation of the CA.

Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs (Sec. 601 of RA 1937, Tariff and Customs Code of the Philippines). This has to be read in harmony with Sec. 16.