Republic of the Philippines given is that which is embodied and expressed in the
SUPREME COURT constitutional provisions themselves.
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA,
petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER
OF THE BUREAU OF CUSTOMS, AND GUILLERMO
CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION
ON APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional
boundaries. In this petition for prohibition, the petitioners, who
are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin
the respondent Salvador Mison from performing the functions of
the Office of Commissioner of the Bureau of Customs and the
respondent Guillermo Carague, as Secretary of the Department
of Budget, from effecting disbursements in payment of Mison's
salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is
unconstitutional by reason of its not having been confirmed by
the Commission on Appointments. The respondents, on the
other hand, maintain the constitutionality of respondent Mison's
appointment without the confirmation of the Commission on
Appointments.
Because of the demands of public interest, including the need
for stability in the public service, the Court resolved to give due
course to the petition and decide, setting aside the finer
procedural questions of whether prohibition is the proper
remedy to test respondent Mison's right to the Office of
Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed
the Commission on Appointments to intervene and file a petition
in intervention. Comment was required of respondents on said
petition. The comment was filed, followed by intervenor's reply
thereto. The parties were also heard in oral argument on 8
December 1987.
This case assumes added significance because, at bottom line,
it involves a conflict between two (2) great departments of
government, the Executive and Legislative Departments. It also
occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of
relatively clear provisions in the Constitution. In cases like this,
we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining
Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to
give effect to the intent of the framers of the organic law and of
the people adopting it. The intention to which force is to be
The Court will thus construe the applicable constitutional
provisions, not in accordance with how the executive or the
legislative department may want them construed, but in
accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
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 the 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.
It is readily apparent that under the provisions of the 1987
Constitution, just quoted, there are four (4) groups of officers
whom the President shall appoint. These four (4) groups, to
which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose
appointments are not otherwise provided for by law; 3
Third, those whom the President may be authorized by law to
appoint;
Fourth, officers lower in rank 4 whose appointments the
Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the consent
of the Commission on Appointments. Appointments of such
officers are initiated by nomination and, if the nomination is
confirmed by the Commission on Appointments, the President
appoints. 5
The second, third and fourth groups of officers are the present
bone of contention. Should they be appointed by the President
with or without the consent (confirmation) of the Commission
on Appointments? By following the accepted rule in
constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it
would follow that only those appointments to positions expressly
stated in the first group require the consent (confirmation) of
the Commission on Appointments. But we need not rely solely
on this basic rule of constitutional construction. We can refer to
historical background as well as to the records of the 1986
Constitutional Commission to determine, with more accuracy, if
not precision, the intention of the framers of the 1987
Constitution and the people adopting it, on whether the
appointments by the President, under the second, third and
fourth groups, require the consent (confirmation) of the
Commission on Appointments. Again, in this task, the following
advice of Mr. Chief Justice J. Abad Santos in Gold Creek is
apropos:
In deciding this point, it should be borne in mind that a
constitutional provision must be presumed to have been framed
and adopted in the light and understanding of prior and existing
laws and with reference to them. "Courts are bound to presume
that the people adopting a constitution are familiar with the
previous and existing laws upon the subjects to which its
provisions relate, and upon which they express their judgment
and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99
N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935
Constitution, it is provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of
the Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the army from
the rank of colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the Government
whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; 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.
(4) The President shall havethe 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.
xxx xxx xxx
(7) ..., and with the consent of the Commission on
Appointments, shall appoint ambassadors, other public ministers
and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus
and offices, the officers of the Armed Forces of the Philippines
from the rank of Brigadier General or Commodore, and all other
officers of The government whose appointments are not herein
otherwise provided for, and those whom he may be authorized
by law to appoint. However, the Batasang Pambansa may by
law vest in the Prime Minister, members of the Cabinet, the
Executive Committee, Courts, Heads of Agencies, Commissions,
and Boards the power to appoint inferior officers in their
respective offices.
Thus, in the 1935 Constitution, almost all presidential
appointments required the consent (confirmation) of the
Commission on Appointments. It is now a sad part of our
political history that the power of confirmation by the
Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of
"horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the
authoritarian pattern in which it was molded and remolded by
successive amendments, placed the absolute power of
appointment in the President with hardly any check on the part
of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution
and the other, in the 1973 Constitution, it is not difficult for the
Court to state that the framers of the 1987 Constitution and the
people adopting it, struck a "middle ground" by requiring the
consent (confirmation) of the Commission on Appointments for
the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers,
i.e., those in the second and third groups as well as those in the
fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support
this conclusion. The original text of Section 16, Article VII, as
proposed by the Committee on the Executive of the 1986
Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent
of a Commission on Appointment, shall appoint the heads of the
executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain and 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
inferior officers in the President alone, in the courts, or in the
heads of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart
provision in the 1935 Constitution. When the frames discussed
on the floor of the Commission the proposed text of Section 16,
Article VII, a feeling was manifestly expressed to make the
power of the Commission on Appointments over presidential
appointments more limited than that held by the Commission in
the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be
recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to
take a few minutes of our time to lay the basis for some of the
amendments that I would like to propose to the Committee this
morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the
Commission on Appointments be limited to the department
heads, ambassadors, generals and so on but not to the levels of
bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there
were two (2) major changes proposed and approved by the
Commission. These were (1) the exclusion of the appointments
of heads of bureaus from the requirement of confirmation by
the Commission on Appointments; and (2) the exclusion of
appointments made under the second sentence 9 of the section
from the same requirement. The records of the deliberations of
the Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized THE PRESIDENT: Is there any objection to delete the phrase
THE PRESIDENT: Commissioner Foz is recognized 'and bureaus' on page 7, line 26? (Silence) The Chair hears
MR. FOZ: Madam President, my proposed amendment none; the amendments is approved.
is on page 7, Section 16, line 26 which is to delete the words xxx xxx xxx
"and bureaus," and on line 28 of the same page, to change the MR. ROMULO: Madam President.
phrase 'colonel or naval captain to MAJOR GENERAL OR REAR THE PRESIDENT: The Acting Floor Leader is recognized.
ADMIRAL. This last amendment which is co-authored by THE PRESIDENT: Commissioner Foz is recognized
Commissioner de Castro is to put a period (.) after the word MR. FOZ: Madam President, this is the third proposed
ADMIRAL, and on line 29 of the same page, start a new sentence amendment on page 7, line 28. 1 propose to put a period (.)
with: HE SHALL ALSO APPOINT, et cetera. after 'captain' and on line 29, delete 'and all' and substitute it
MR. REGALADO: May we have the amendments one by one. with HE SHALL ALSO APPOINT ANY.
The first proposed amendment is to delete the words "and MR. REGALADO: Madam President, the Committee accepts the
bureaus" on line 26. proposed amendment because it makes it clear that those other
MR. FOZ: That is correct. officers mentioned therein do not have to be confirmed by the
MR. REGALADO: For the benefit of the other Commissioners, Commission on Appointments.
what would be the justification of the proponent for such a MR. DAVIDE: Madam President.
deletion? THE PRESIDENT: Commissioner Davide is recognized.
MR. FOZ: The position of bureau director is actually xxx xxx xxx
quite low in the executive department, and to require further MR. DAVIDE: So would the proponent accept an
confirmation of presidential appointment of heads of bureaus amendment to his amendment, so that after "captain" we insert
would subject them to political influence. the following words: AND OTHER OFFICERS WHOSE
MR. REGALADO: The Commissioner's proposed amendment by APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
deletion also includes regional directors as distinguished from FR. BERNAS: It is a little vague.
merely staff directors, because the regional directors have quite MR. DAVIDE: In other words, there are positions provided
a plenitude of powers within the regions as distinguished from for in the Constitution whose appointments are vested in the
staff directors who only stay in the office. President, as a matter of fact like those of the different
MR. FOZ: Yes, but the regional directors are under the constitutional commissions.
supervisiopn of the staff bureau directors. FR. BERNAS: That is correct. This list of officials found in
xxx xxx xxx Section 16 is not an exclusive list of those appointments which
MR. MAAMBONG: May I direct a question to Commissioner Foz? constitutionally require confirmation of the Commission on
The Commissioner proposed an amendment to delete 'and Appointments,
bureaus on Section 16. Who will then appoint the bureau MR. DAVIDE: That is the reason I seek the incorporation of
directors if it is not the President? the words I proposed.
MR. FOZ: It is still the President who will appoint them FR. BERNAS: Will Commissioner Davide restate his
but their appointment shall no longer be subject to confirmation proposed amendment?
by the Commission on Appointments. MR. DAVIDE: After 'captain,' add the following: AND OTHER
MR. MAAMBONG: In other words, it is in line with the same OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
answer of Commissioner de Castro? THIS CONSTITUTION.
MR. FOZ: Yes. FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE
MR. MAAMBONG: Thank you. APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
THE PRESIDENT: Is this clear now? What is the reaction of the CONSTITUTION"?
Committee? MR. DAVIDE: Yes, Madam President, that is modified by the
xxx xxx xxx Committee.
MR. REGALADO: Madam President, the Committee feels that FR. BERNAS: That will clarify things.
this matter should be submitted to the body for a vote. THE PRESIDENT: Does the Committee accept?
MR. DE CASTRO: Thank you. MR. REGALADO: Just for the record, of course, that excludes
MR. REGALADO: We will take the amendments one by one. We those officers which the Constitution does not require
will first vote on the deletion of the phrase 'and bureaus on line confirmation by the Commission on Appointments, like the
26, such that appointments of bureau directors no longer need members of the judiciary and the Ombudsman.
confirmation by the Commission on Appointment. MR. DAVIDE: That is correct. That is very clear from the
Section 16, therefore, would read: 'The President shall modification made by Commissioner Bernas.
nominate, and with the consent of a Commission on THE PRESIDENT: So we have now this proposed amendment of
Appointments, shall appoint the heads of the executive Commissioners Foz and Davide.
departments, ambassadors. . . . xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by
the Committee? (Silence) The Chair hears none; the
amendment, as amended, is approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third
groups of officers can be made by the President without the
consent (confirmation) of the Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that
the second sentence of Sec. 16, Article VII reading-
He (the President) 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 . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the
President shall "in like manner" appoint the officers mentioned
in said second sentence. In other words, the President shall
appoint the officers mentioned in said second sentence in the
same manner as he appoints officers mentioned in the first
sentence, that is, by nomination and with the consent
(confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second
sentence is not necessarily supportive of the conclusion he
arrives at. For, as the Solicitor General argues, the word "also"
could mean "in addition; as well; besides, too" (Webster's
International Dictionary, p. 62, 1981 edition) which meanings
could, on the contrary, stress that the word "also" in said second
sentence means that the President, in addition to nominating
and, with the consent of the Commission on Appointments,
appointing the officers enumerated in the first sentence, can
appoint (without such consent (confirmation) the officers
mentioned in the second sentence-
Rather than limit the area of consideration to the possible
meanings of the word "also" as used in the context of said
second sentence, the Court has chosen to derive significance
from the fact that the first sentence speaks of nomination by the
President and appointment by the President with the consent of
the Commission on Appointments, whereas, the second
sentence speaks only of appointment by the President. And, this
use of different language in two (2) sentences proximate to each
other underscores a difference in message conveyed and
perceptions established, in line with Judge Learned Hand's
observation that "words are not pebbles in alien juxtaposition"
but, more so, because the recorded proceedings of the 1986
Constitutional Commission clearly and expressly justify such
differences.
As a result of the innovations introduced in Sec. 16, Article VII
of the 1987 Constitution, there are officers whose appointments
require no confirmation of the Commission on Appointments,
even if such officers may be higher in rank, compared to some
officers whose appointments have to be confirmed by the
Commission on Appointments under the first sentence of the
same Sec. 16, Art. VII. Thus, to illustrate, the appointment of
the Central Bank Governor requires no confirmation by the
Commission on Appointments, even if he is higher in rank than
a colonel in the Armed Forces of the Philippines or a consul in
the Consular Service.
But these contrasts, while initially impressive, merely underscore
the purposive intention and deliberate judgment of the framers
of the 1987 Constitution that, except as to those officers whose
appointments require the consent of the Commission on
Appointments by express mandate of the first sentence in Sec.
16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on
Appointments. This conclusion is inevitable, if we are to
presume, as we must, that the framers of the 1987 Constitution
were knowledgeable of what they were doing and of the
foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or
presidential in character. Limitations on or qualifications of such
power should be strictly construed against them. Such
limitations or qualifications must be clearly stated in order to be
recognized. But, it is only in the first sentence of Sec. 16, Art.
VII where it is clearly stated that appointments by the President
to the positions therein enumerated require the consent of the
Commission on Appointments.
As to the fourth group of officers whom the President can
appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the 1987
Constitution, which reads:
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].
and argues that, since a law is needed to vest the appointment
of lower-ranked officers in the President alone, this implies that,
in the absence of such a law, lower-ranked officers have to be
appointed by the President subject to confirmation by the
Commission on Appointments; and, if this is so, as to lower-
ranked officers, it follows that higher-ranked officers should be
appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third
sentence of Sec. 16, Article VII, abovequoted, merely declares
that, as to lower-ranked officers, the Congress may by law vest
their appointment in the President, in the courts, or in the heads
of the various departments, agencies, commissions, or boards
in the government. No reason however is submitted for the use
of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the
considered opinion, after a careful study of the deliberations of
the 1986 Constitutional Commission, that the use of the word
alone" after the word "President" in said third sentence of Sec.
16, Article VII is, more than anything else, a slip or lapsus in
draftmanship. It will be recalled that, in the 1935 Constitution,
the following provision appears at the end of par. 3, section 1
0, Article VII thereof
...; 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. [Emphasis supplied].
The above provision in the 1935 Constitution appears
immediately after the provision which makes practically all
presidential appointments subject to confirmation by the
Commission on Appointments, thus-
3. The President shall nominate and with the consent of
the Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the Government
whose appointments are not herein provided for, and those
whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a
general rule, presidential appointments to confirmation by the
Commission on Appointments, the same 1935 Constitution saw
fit, by way of an exception to such rule, to provide that Congress
may, however, by law vest the appointment of inferior officers
(equivalent to 11 officers lower in rank" referred to in the 1987
Constitution) in the President alone, in the courts, or in the
heads of departments,
In the 1987 Constitution, however, as already pointed out, the
clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the Commission
on Appointments, except appointments to offices expressly
mentioned in the first sentence of Sec. 16, Article VII.
Consequently, there was no reason to use in the third sentence
of Sec. 16, Article VII the word "alone" after the word
"President" in providing that Congress may by law vest the
appointment of lower-ranked officers in the President alone, or
in the courts, or in the heads of departments, because the power
to appoint officers whom he (the President) may be authorized
by law to appoint is already vested in the President, without
need of confirmation by the Commission on Appointments, in
the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have
stated merely that, in the case of lower-ranked officers, the
Congress may by law vest their appointment in the President, in
the courts, or in the heads of various departments of the
government. In short, the word "alone" in the third sentence of
Sec. 16, Article VII of the 1987 Constitution, as a literal import
from the last part of par. 3, section 10, Article VII of the 1935
Constitution, appears to be redundant in the light of the second
sentence of Sec. 16, Article VII. And, this redundancy cannot
prevail over the clear and positive intent of the framers of the
1987 Constitution that presidential appointments, except those
mentioned in the first sentence of Sec. 16, Article VII, are not
subject to confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is
evident that the position of Commissioner of the Bureau of
Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on
Appointments is required. As a matter of fact, as already pointed
out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of
the Commission on Appointments, the 1987 Constitution on the
other hand, deliberately excluded the position of "heads of
bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to
appoint the Commissioner of the Bureau of Customs. The
original text of Sec. 601 of Republic Act No. 1937, otherwise
known as the Tariff and Customs Code of the Philippines, which
was enacted by the Congress of the Philippines on 22 June 1957,
reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs
shall have one chief and one assistant chief, to be known
respectively as the Commissioner (hereinafter known as the
'Commissioner') and Assistant Commissioner of Customs, who
shall each receive an annual compensation in accordance with
the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the proper
department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October
1972 by Presidential Decree No. 34, amending the Tariff and
Customs Code of the Philippines. Sec. 601, as thus amended,
now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The
Bureau of Customs shall have one chief and one assistant chief,
to be known respectively as the Commissioner (hereinafter
known as Commissioner) and Deputy Commissioner of Customs,
who shall each receive an annual compensation in accordance
with the rates prescribed by existing law. The Commissioner and
the Deputy Commissioner of Customs shall be appointed by the
President of the Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were
approved during the effectivity of the 1935 Constitution, under
which the President may nominate and, with the consent of the
Commission on Appointments, appoint the heads of bureaus,
like the Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act
No. 1937 and PD No. 34 have to be read in harmony with Sec.
16, Art. VII, with the result that, while the appointment of the
Commissioner of the Bureau of Customs is one that devolves on
the President, as an appointment he is authorizedby law to
make, such appointment, however, no longer needs the
confirmation of the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted
within her constitutional authority and power in appointing
respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission
on Appointments for confirmation. He is thus entitled to exercise
the full authority and functions of the office and to receive all
the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be,
as they are, hereby DISMISSED. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and
Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance
with its constitutional duty, to adjudicate promptly the issue at
bar and to rule that the direct appointment of respondent
Salvador Mison as Commissioner of the Bureau of Customs
(without need of submitting a prior nomination to the
Commission on Appointments and securing its confirmation) is
valid and in accordance with the President's constitutional
authority to so appoint officers of the Government as defined in
Article VII, section 16 of the 1987 Constitution. The paramount
public interest and the exigencies of the public service demand
that any doubts over the validity of such appointments be
resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not
mention nor deal with the Manifestation of December 1, 1987
filed by the intervenor that Senate Bill No. 137 entitled "An Act
Providing For the Confirmation By the Commission on
Appointments of All Nominations and Appointments Made by the
President of the Philippines" was passed on 23 October 1987
and was "set for perusal by the House of Representatives. " This
omission has been deliberate. The Court has resolved the case
at bar on the basis of the issues joined by the parties. The
contingency of approval of the bill mentioned by intervenor
clearly has no bearing on and cannot affect retroactively the
validity of the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G.
Almario vs. Hon. Miriam Defensor- Santiago." The Court does
not deal with constitutional questions in the abstract and without
the same being properly raised before it in a justiciable case and
after thorough discussion of the various points of view that
would enable it to render judgment after mature deliberation.
As stressed at the hearing of December 8, 1987, any discussion
of the reported bill and its validity or invalidity is premature and
irrelevant and outside the scope of the issues resolved in the
case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring
opinion of Justice Sarmiento, and simply wish to add my own
reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution 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 the 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 and 1st three
paragraphings, supplied).
The difference in language used is significant. Under the first
sentence it is clear that the President "nominates" and with the
consent of the Commission on Appointments "appoints" the
officials enumerated. The second sentence, however,
significantly uses only the term "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. Deliberately eliminated was any reference to
nomination.
Thus, the intent of the framers of the Constitution to exclude
the appointees mentioned in the second sentence from
confirmation by the Commission on Appointments is, to my
mind, quite clear. So also is the fact that the term "appoint" used
in said sentence was not meant to include the three distinct acts
in the appointing process, namely, nomination, appointment,
and commission. For if that were the intent, the same
terminologies in the first sentence could have been easily
employed.
There should be no question either that the participation of the
Commission on Appointments in the appointment process has
been deliberately decreased in the 1987 Constitution compared
to that in the 1935 Constitution, which required that all
presidential appointments be with the consent of the
Commission on Appointments.
The interpretation given by the majority may, indeed, lead to
some incongruous situations as stressed in the dissenting
opinion of Justice Cruz. The remedy therefor addresses itself to
the future. The task of constitutional construction is to ascertain
the intent of the framers of the Constitution and thereafter to
assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure
Administration, G.R. No. 21064, February 18, 1970, 31 SCRA
413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all
Presidential appointments are subject to prior Congressional
confirmation, thus:
Sec. 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 recess of the Congress, whether voluntary or
compulsory, but such appointment shall be effective only until
disapproval by the Commission on Appointments or until the
next adjournment of the Congress. 1
By its plain language, the Constitution has intended that only
those grouped under the first sentence are required to undergo
a consenting process. This is a significant departure from the
procedure set forth in the 1935 Charter:
(3) The President shall nominate and with the consent of
the Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank of
captain to commander, and all other officers of the Government
whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; 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. 2
under which, as noted by the majority, "almost all presidential
appointments required the consent (confirmation) of the
Commission on Appointments. 3 As far as the present Charter is
concerned, no extrinsic aid is necessary to ascertain its meaning.
Had its framers intended otherwise, that is to say, to require all
Presidential appointments clearance from the Commission on
Appointments, they could have simply reenacted the
Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of
appointments that the President may make: (1) appointments
of heads of executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and those of other officers
whose appointments are vested in him under the Constitution,
including the regular members of the Judicial and Bar Council, 5
the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the
Commission on Elections, 7 and the Chairman and
Commissioners of the Commission on Audit; 8 (2) those officers
whose appointments are not otherwise provided for by law; (3)
those whom he may be authorized by law to appoint; and (4)
officers lower in rank whose appointments the Congress may
vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors
of the fundamental law have written a "rather confused
Constitution" 9 with respect, to a large extent, to its other parts,
and with respect, to a certain extent, to the appointing clause
itself, in the sense that it leaves us for instance, with the
incongruous situation where a consul's appointment needs
confirmation whereas that of Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were,
of the Charter is not for us to judge. That is a question
addressed to the electorate, and who, despite those
"eccentricities," have stamped their approval on that Charter.
"The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with how
the executive or the legislative department may want them
construed, but in accordance with what they say and provide."
10
It must be noted that the appointment of public officials is
essentially an exercise of executive power. 11 The fact that the
Constitution has provided for a Commission on Appointments
does not minimize the extent of such a power, much less, make
it a shared executive-legislative prerogative. In Concepcion v.
Paredes, we stated in no uncertain terms that "[a]ppointment
to office is intrinsically an executive act involving the exercise of
discretion." 12 Springer v. Philippine Islands 13 on the other
hand, underscored the fact that while the legislature may create
a public office, it cannot name the official to discharge the
functions appurtenant thereto. And while it may prescribe the
qualifications therefor, it cannot circumscribe such
qualifications, which would unduly narrow the President's
choice. In that event, it is as if it is the legislature itself
conferring the appointment.
Thus, notwithstanding the existence of a Commission on
Appointments, the Chief Executive retains his supremacy as the
appointing authority. In case of doubt, the same should be
resolved in favor of the appointing power.
It is the essence of a republican form of government, like ours,
that "[e]ach department of the government has exclusive
cognizance of matters within its jurisdiction." 14 But like all
genuine republican systems, no power is absolutely separate
from the other. For republicanism operates on a process of
checks and balances as well, not only to guard against excesses
by one branch, but more importantly, "to secure coordination in
the workings of the various departments of the government."
15 Viewed in that light, the Commission on Appointments acts
as a restraint against abuse of the appointing authority, but not
as a means with which to hold the Chief Executive hostage by a
possibly hostile Congress, an unhappy lesson as the majority
notes, in our history under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the
provision on appointments. The prohibition, for instance, against
the enactment of a bill of attainder operates as a bar against
legislative encroachment upon both judicial and executive
domains, since the determination of guilt and punishment of the
guilty address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the
Constitution is a sword that cuts both ways. In a very real sense,
the power of appointment constitutes a check against legislative
authority. In Springer v. Philippine Islands, 17we are told that
"Congress may not control the law enforcement process by
retaining a power to appoint the individual who will execute the
laws." 18 This is so, according to one authority, because "the
appointments clause, rather than 'merely dealing with etiquette
or protocol,' seeks to preserve an executive check upon
legislative authority in the interest of avoiding an undue
concentration of power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that
matter, no other department of the Government may discharge
that function, least of all Congress. Accordingly, a statute
conferring upon a commission the responsibility of administering
that very legislation and whose members have been determined
therein, has been held to be repugnant to the Charter. 21
Execution of the laws, it was held, is the concern of the
President, and in going about this business, he acts by himself
or through his men and women, and no other.
The President, on the other hand, cannot remove his own
appointees "except for cause provided by law."
22Parenthetically, this represents a deviation from the rule
prevailing in American jurisdiction that "the power of removal .
. . [is] incident to the power of appointment, 23 although this
has since been tempered in a subsequent case, 24 where it was
held that the President may remove only "purely executive
officers, 25 that is, officers holding office at his pleasure. In
Ingles v. Mutuc, 26 this Court held that the President may
remove incumbents of offices confidential in nature, but we
likewise made clear that in such a case, the incumbent is not
"removed" within the meaning of civil service laws, but that his
term merely expires.
It is to be observed, indeed, that the Commission on
Appointments, as constituted under the 1987 Constitution, is
itself subject to some check. Under the Charter, "[tlhe
Commission shall act on all appointments submitted to it within
thirty session days of the Congress from their submission. 27
Accordingly, the failure of the Commission to either consent or
not consent to the appointments preferred before it within the
prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution
where the boundaries of power are blurred by the predominance
of checks and counterchecks, yet amid such a rubble of
competing powers emerges a structure whose parts are at times
jealous of each other, but which are ultimately necessary in
assuring a dynamic, but stable, society. As Mr. Justice Holmes
had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and
divide fields of black and white. Even the more specific of them
are found to terminate in a penumbra shading gradually from
one extreme to the other. ... When we come to the fundamental
distinctions it is still more obvious that they must be received
with a certain latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we
may disguise it by veiling words we do not and cannot carry out
the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am
far from believing that it is, or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and
counterpoises, which Newton might readily have recognized as
suggestive of the mechanism of the heavens," (W. Wilson,
Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of
life (Id. at 192: "The Constitution cannot be regarded as a mere
legal document, to be read as a will or a contract would be. It
must, of the necessity of the case, be a vehicle of life.") The
great difficulty of any theory less rich, Woodrow Wilson once
warned, "is that government is not a machine, but a living thing.
It falls, not under the theory of the universe, but under the
theory of organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer pressure
of life. No living thing can have its organs offset against each
other as checks, and five." (Id. at 56.) Yet because no complex
society can have its centers of power not "offset against each
other as checks," and resist tyranny, the Model of Separated and
Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the
1973 Constitution deliberately denied the legislature (the
National Assembly under the 1971 draft Constitution) the power
to check executive appointments, and hence, granted the
President absolute appointing power. 30 As a delegate to, and
Vice-President of, the ill-fated 1971 Constitutional Convention,
and more so as the presiding officer of most of its plenary
session, I am aware that the Convention did not provide for a
commission on appointments on the theory that the Prime
Minister, the head of the Government and the sole appointing
power, was himself a member of parliament. For this reason,
there was no necessity for a separate body to scrutinize his
appointees. But should such appointees forfeit the confidence of
the assembly, they are, by tradition, required to resign, unless
they should otherwise have been removed by the Prime
Minister. 31 In effect, it is parliament itself that "approves" such
appointments. Unfortunately, supervening events forestalled
our parliamentary experiment, and beginning with the 1976
amendments and some 140 or so amendments thereafter, we
had reverted to the presidential form, 32 without provisions for
a commission on appointments.
In fine, while Presidential appointments, under the first sentence
of Section 16, of Article VII of the present Constitution, must
pass prior Congressional scrutiny, it is a test that operates as a
mere safeguard against abuse with respect to those
appointments. It does not accord Congress any more than the
power to check, but not to deny, the Chief Executive's
appointing power or to supplant his appointees with its own. It
is but an exception to the rule. In limiting the Commission's
scope of authority, compared to that under the 1935
Constitution, I believe that the 1987 Constitution has simply
recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the
Constitution, as the supreme law of the land, should never have
any of its provisions interpreted in a manner that results in
absurd or irrational consequences.
The Commission on Appointments is an important constitutional
body which helps give fuller expression to the principles inherent
in our presidential system of government. Its functions cannot
be made innocuous or unreasonably diminished to the
confirmation of a limited number of appointees. In the same
manner that the President shares in the enactment of laws
which govern the nation, the legislature, through its Commission
on Appointments, gives assurance that only those who can pass
the scrutiny of both the President and Congress will help run the
country as officers holding high appointive positions. The third
sentence of the first paragraph " ... 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." specifies only "officers
lower in rank" as those who may, by law, be appointed by the
President alone. If as expounded in the majority opinion, only
the limited number of officers in the first sentence of Section 16
require confirmation, the clear intent of the third sentence is
lost. In fact both the second and third sentences become
meaningless or superfluous. Superfluity is not to be read into
such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution
on appointments must be read together. In providing for the
appointment of members of the Supreme Court and judges of
lower courts (Section 9, Article VIII), the Ombudsman and his
deputies (Section 9, Article XI), the Vice President as a member
of cabinet (Section 3, Article VII) and, of course, those who by
law the President alone may appoint, the Constitution clearly
provides no need for confirmation. This can only mean that all
other appointments need confirmation. Where there is no need
for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a
Commission on Appointments because the government it set up
was supposed to be a parliamentary one. The Prime Minister, as
head of government, was constantly accountable to the
legislature. In our presidential system, the interpretation which
Justice Cruz and myself espouse, is more democratic and more
in keeping with the system of government organized under the
Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion,
is briefly as follows: Confirmation is required only for the officers
mentioned in the first sentence of Section 16, to wit: (1) the
heads of the executive departments; (2) ambassadors, other
public ministers and consuls; (3) officers of the armed forces
from the rank of colonel or naval captain; and (4) other officers
whose appointments are vested in the President in the
Constitution. No confirmation is required under the second
sentence for (1) all other officers whose appointments are not
otherwise provided for by law, and (2) those whom the
President may be authorized by law to appoint. Neither is
confirmation required by the third sentence for those other
officers lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of Foreign
Affairs, who is not the head of his department, does not have to
be confirmed by the Commission on Appointments, but the
ordinary consul, who is under his jurisdiction, must be
confirmed. The colonel is by any standard lower in rank than the
Chairman of the Commission on Human Rights, which was
created by the Constitution; yet the former is subject to
confirmation but the latter is not because he does not come
under the first sentence. The Special Prosecutor, whose
appointment is not vested by the Constitution in the President,
is not subject to confirmation under the first sentence, and
neither are the Governor of the Central Bank and the members
of the Monetary Board because they fall under the second
sentence as interpreted by the majority opinion. Yet in the case
of the multi-sectoral members of the regional consultative
commission, whose appointment is vested by the Constitution in
the President under Article X, Section 18, their confirmation is
required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers
as they would lead to the absurd consequences we should avoid
in interpreting the Constitution.
There is no question that bureau directors are not required to
be confirmed under the first sentence of Section 16, but that is
not the provision we ought to interpret. It is the second sentence
we must understand for a proper resolution of the issues now
before us. Significantly, although there was a long discussion of
the first sentence in the Constitutional Commission, there is
none cited on the second sentence either in the Solicitor-
General's comment or in the majority opinion. We can therefore
only speculate on the correct interpretation of this provision in
the light of the first and third sentences of Section 16 or by
reading this section in its totality.
The majority opinion says that the second sentence is the
exception to the first sentence and holds that the two sets of
officers specified therein may be appointed by the President
without the concurrence of the Commission on Appointments.
This interpretation is pregnant with mischievous if not also
ridiculous results that presumably were not envisioned by the
framers.
One may wonder why it was felt necessary to include the second
sentence at all, considering the majority opinion that the
enumeration in the first sentence of the officers subject to
confirmation is exclusive on the basis of expressio unius est
exclusio alterius. If that be so, the first sentence would have
been sufficient by itself to convey the Idea that all other
appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second
sentence do not need confirmation, it was still felt necessary to
provide in the third sentence that the appointment of the other
officers lower in rank will also not need confirmation as long as
their appointment is vested by law in the President alone. The
third sentence would appear to be superfluous, too, again in
view of the first sentence.
More to the point, what will follow if Congress does not see fit
to vest in the President alone the appointment of those other
officers lower in rank mentioned in the third sentence?
Conformably to the language thereof, these lower officers will
need the confirmation of the Commission on Appointments
while, by contrast, the higher officers mentioned in the second
sentence will not.
Thus, a regional director in the Department of Labor and the
labor arbiters, as officers lower in rank than the bureau director,
will have to be confirmed if the Congress does not vest their
appointment in the President alone under the third sentence. On
the other hand, their superior, the bureau director himself, will
not need to be confirmed because, according to the majority
opinion, he falls not under the first sentence but the second.
This is carefulness in reverse, like checking the bridesmaids but
forgetting the bride.
It must be borne in mind that one of the purposes of the
Constitutional Commission was to restrict the powers of the
Presidency and so prevent the recurrence of another
dictatorship. Among the many measures taken was the
restoration of the Commission on Appointments to check the
appointing power which had been much abused by President
Marcos. We are now told that even as this body was revived to
limit appointments, the scope of its original authority has itself
been limited in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation
of the Idea expressed in the first sentence and simply mentions
the other officers appointed by the President who are also
subject to confirmation. The second sentence is the later
expression of the will of the framers and so must be interpreted
as complementing the rule embodied in the first sentence or, if
necessary, reversing the original intention to exempt bureau
directors from confirmation. I repeat that there were no debates
on this matter as far as I know, which simply means that my
humble conjecture on the meaning of Section 16 is as arguable,
at least, as the suppositions of the majority. We read and rely
on the same records. At any rate, this view is more consistent
with the general purpose of Article VII, which, to repeat, was to
reduce the powers of the Presidency.
The respondent cites the following exchange reported in page
520, Volume II, of the Record of the Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed
amendment on page 7, line 28, 1 propose to put a period (.)
after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.
However, the records do not show what particular part of
Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest that
the body was considering the first sentence of the said section,
which I reiterate is not the controversial provision. In any case,
although the excerpt shows that the proposed amendment of
Commissioner Foz was accepted by the committee, it is not
reflected, curiously enough, in the final version of Section 16 as
a perusal thereof will readily reveal. Whether it was deleted later
in the session or reworded by the style committee or otherwise
replaced for whatever reason will need another surmise on this
rather confused Constitution.
I need only add that the records of the Constitutional
Commission are merely extrinsic aids and are at best persuasive
only and not necessarily conclusive. Interestingly, some quarters
have observed that the Congress is not prevented from adding
to the list of officers subject to confirmation by the Commission
on Appointments and cite the debates on this matter in support
of this supposition. It is true enough that there was such a
consensus, but it is equally true that this thinking is not at all
expressed, or even only implied, in the language of Section 16
of Article VII. Which should prevail then the provision as worded
or the debates?
It is not disputed that the power of appointment is executive in
nature, but there is no question either that it is not absolute or
unlimited. The rule re- established by the new Constitution is
that the power requires confirmation by the Commission on
Appointments as a restraint on presidential excesses, in line with
the system of checks and balances. I submit it is the exception
to this rule, and not the rule, that should be strictly construed.
In my view, the only officers appointed by the President who
are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the
Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in rank,"
but only when their appointment is vested by law in the
President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while
not covered by the first sentence of Section 16, comes under
the second sentence thereof as I would interpret it and so is also
subject to confirmation.
I vote to grant the petition.
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance
with its constitutional duty, to adjudicate promptly the issue at
bar and to rule that the direct appointment of respondent
Salvador Mison as Commissioner of the Bureau of Customs
(without need of submitting a prior nomination to the
Commission on Appointments and securing its confirmation) is
valid and in accordance with the President's constitutional
authority to so appoint officers of the Government as defined
in Article VII, section 16 of the 1987 Constitution. The
paramount public interest and the exigencies of the public
service demand that any doubts over the validity of such
appointments be resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not
mention nor deal with the Manifestation of December 1, 1987
filed by the intervenor that Senate Bill No. 137 entitled "An Act
Providing For the Confirmation By the Commission on
Appointments of All Nominations and Appointments Made by
the President of the Philippines" was passed on 23 October
1987 and was "set for perusal by the House of
Representatives. " This omission has been deliberate. The
Court has resolved the case at bar on the basis of the issues
joined by the parties. The contingency of approval of the bill
mentioned by intervenor clearly has no bearing on and cannot
affect retroactively the validity of the direct appointment of
respondent Mison and other appointees similarly situated as in
G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor-
Santiago." The Court does not deal with constitutional
questions in the abstract and without the same being properly
raised before it in a justiciable case and after thorough
discussion of the various points of view that would enable it to
render judgment after mature deliberation. As stressed at the
hearing of December 8, 1987, any discussion of the reported
bill and its validity or invalidity is premature and irrelevant and
outside the scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring
opinion of Justice Sarmiento, and simply wish to add my own
reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution 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 the 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 and 1st three
paragraphings, supplied).
The difference in language used is significant. Under the first
sentence it is clear that the President "nominates" and with the
consent of the Commission on Appointments "appoints" the
officials enumerated. The second sentence, however,
significantly uses only the term "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. Deliberately eliminated was any reference to
nomination.
Thus, the intent of the framers of the Constitution to exclude
the appointees mentioned in the second sentence from
confirmation by the Commission on Appointments is, to my
mind, quite clear. So also is the fact that the term "appoint"
used in said sentence was not meant to include the three
distinct acts in the appointing process, namely, nomination,
appointment, and commission. For if that were the intent, the
same terminologies in the first sentence could have been easily
employed.
There should be no question either that the participation of the
Commission on Appointments in the appointment process has
been deliberately decreased in the 1987 Constitution compared
to that in the 1935 Constitution, which required that all
presidential appointments be with the consent of the
Commission on Appointments.
The interpretation given by the majority may, indeed, lead to
some incongruous situations as stressed in the dissenting
opinion of Justice Cruz. The remedy therefor addresses itself to
the future. The task of constitutional construction is to
ascertain the intent of the framers of the Constitution and
thereafter to assure its realization (J.M. Tuason & Co., Inc. vs.
Land Tenure Administration, G.R. No. 21064, February 18,
1970, 31 SCRA 413). And the primary source from which to
ascertain constitutional intent is the language of the
Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all
Presidential appointments are subject to prior Congressional
confirmation, thus:
Sec. 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 recess of the Congress, whether voluntary or
compulsory, but such appointment shall be effective only until
disapproval by the Commission on Appointments or until the
next adjournment of the Congress. 1
By its plain language, the Constitution has intended that only
those grouped under the first sentence are required to
undergo a consenting process. This is a significant departure
from the procedure set forth in the 1935 Charter:
(3) The President shall nominate and with the consent of
the Commission on Appointments, shall appoint the heads of
the executive departments and bureaus, officers of the Army
from the rank of colonel, of the Navy and Air Forces from the
rank of captain to commander, and all other officers of the
Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law to
appoint; 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. 2
under which, as noted by the majority, "almost all presidential
appointments required the consent (confirmation) of the
Commission on Appointments. 3 As far as the present Charter
is concerned, no extrinsic aid is necessary to ascertain its
meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the
Commission on Appointments, they could have simply
reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of
appointments that the President may make: (1) appointments
of heads of executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and those of other officers
whose appointments are vested in him under the Constitution,
including the regular members of the Judicial and Bar Council,
5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the
Commission on Elections, 7 and the Chairman and
Commissioners of the Commission on Audit; 8 (2) those officers
whose appointments are not otherwise provided for by law; (3)
those whom he may be authorized by law to appoint; and (4)
officers lower in rank whose appointments the Congress may
vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors
of the fundamental law have written a "rather confused
Constitution" 9 with respect, to a large extent, to its other
parts, and with respect, to a certain extent, to the appointing
clause itself, in the sense that it leaves us for instance, with
the incongruous situation where a consul's appointment needs
confirmation whereas that of Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it
were, of the Charter is not for us to judge. That is a question
addressed to the electorate, and who, despite those
"eccentricities," have stamped their approval on that Charter.
"The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with
how the executive or the legislative department may want
them construed, but in accordance with what they say and
provide." 10
It must be noted that the appointment of public officials is
essentially an exercise of executive power. 11 The fact that
the Constitution has provided for a Commission on
Appointments does not minimize the extent of such a power,
much less, make it a shared executive-legislative prerogative.
In Concepcion v. Paredes, we stated in no uncertain terms that
"[a]ppointment to office is intrinsically an executive act
involving the exercise of discretion." 12 Springer v. Philippine
Islands 13 on the other hand, underscored the fact that while
the legislature may create a public office, it cannot name the
official to discharge the functions appurtenant thereto. And
while it may prescribe the qualifications therefor, it cannot
circumscribe such qualifications, which would unduly narrow
the President's choice. In that event, it is as if it is the
legislature itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on
Appointments, the Chief Executive retains his supremacy as
the appointing authority. In case of doubt, the same should be
resolved in favor of the appointing power.
It is the essence of a republican form of government, like ours,
that "[e]ach department of the government has exclusive
cognizance of matters within its jurisdiction." 14 But like all
genuine republican systems, no power is absolutely separate
from the other. For republicanism operates on a process of
checks and balances as well, not only to guard against
excesses by one branch, but more importantly, "to secure
coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on
Appointments acts as a restraint against abuse of the
appointing authority, but not as a means with which to hold
the Chief Executive hostage by a possibly hostile Congress, an
unhappy lesson as the majority notes, in our history under the
regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the
provision on appointments. The prohibition, for instance,
against the enactment of a bill of attainder operates as a bar
against legislative encroachment upon both judicial and
executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive
functions, respective y. 16
And then, the cycle of checks and balances pervading the
Constitution is a sword that cuts both ways. In a very real
sense, the power of appointment constitutes a check against
legislative authority. In Springer v. Philippine Islands, 17we
are told that "Congress may not control the law enforcement
process by retaining a power to appoint the individual who will
execute the laws." 18 This is so, according to one authority,
because "the appointments clause, rather than 'merely dealing
with etiquette or protocol,' seeks to preserve an executive
check upon legislative authority in the interest of avoiding an
undue concentration of power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that
matter, no other department of the Government may
discharge that function, least of all Congress. Accordingly, a
statute conferring upon a commission the responsibility of
administering that very legislation and whose members have
been determined therein, has been held to be repugnant to
the Charter. 21 Execution of the laws, it was held, is the
concern of the President, and in going about this business, he
acts by himself or through his men and women, and no other.
The President, on the other hand, cannot remove his own
appointees "except for cause provided by law."
22Parenthetically, this represents a deviation from the rule
prevailing in American jurisdiction that "the power of removal .
. . [is] incident to the power of appointment, 23 although this
has since been tempered in a subsequent case, 24 where it was
held that the President may remove only "purely executive
officers, 25 that is, officers holding office at his pleasure. In
Ingles v. Mutuc, 26 this Court held that the President may
remove incumbents of offices confidential in nature, but we
likewise made clear that in such a case, the incumbent is not
"removed" within the meaning of civil service laws, but that his
term merely expires.
It is to be observed, indeed, that the Commission on
Appointments, as constituted under the 1987 Constitution, is
itself subject to some check. Under the Charter, "[tlhe
Commission shall act on all appointments submitted to it within
thirty session days of the Congress from their submission. 27
Accordingly, the failure of the Commission to either consent or
not consent to the appointments preferred before it within the
prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution
where the boundaries of power are blurred by the
predominance of checks and counterchecks, yet amid such a
rubble of competing powers emerges a structure whose parts
are at times jealous of each other, but which are ultimately
necessary in assuring a dynamic, but stable, society. As Mr.
Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and
divide fields of black and white. Even the more specific of them
are found to terminate in a penumbra shading gradually from
one extreme to the other. ... When we come to the
fundamental distinctions it is still more obvious that they must
be received with a certain latitude or our government could not
go on.
xxx xxx xxx
It does not seem to need argument to show that however we
may disguise it by veiling words we do not and cannot carry
out the distinction between legislative and executive action
with mathematical precision and divide the branches into
watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution
requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and
counterpoises, which Newton might readily have recognized as
suggestive of the mechanism of the heavens," (W. Wilson,
Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of
life (Id. at 192: "The Constitution cannot be regarded as a
mere legal document, to be read as a will or a contract would
be. It must, of the necessity of the case, be a vehicle of life.")
The great difficulty of any theory less rich, Woodrow Wilson
once warned, "is that government is not a machine, but a
living thing. It falls, not under the theory of the universe, but
under the theory of organic life. It is accountable to Darwin,
not to Newton. It is . . . shaped to its functions by the sheer
pressure of life. No living thing can have its organs offset
against each other as checks, and five." (Id. at 56.) Yet
because no complex society can have its centers of power not
"offset against each other as checks," and resist tyranny, the
Model of Separated and Divided Powers offers continuing
testimony to the undying dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that
the 1973 Constitution deliberately denied the legislature (the
National Assembly under the 1971 draft Constitution) the
power to check executive appointments, and hence, granted
the President absolute appointing power. 30 As a delegate to,
and Vice-President of, the ill-fated 1971 Constitutional
Convention, and more so as the presiding officer of most of its
plenary session, I am aware that the Convention did not
provide for a commission on appointments on the theory that
the Prime Minister, the head of the Government and the sole
appointing power, was himself a member of parliament. For
this reason, there was no necessity for a separate body to
scrutinize his appointees. But should such appointees forfeit
the confidence of the assembly, they are, by tradition, required
to resign, unless they should otherwise have been removed by
the Prime Minister. 31 In effect, it is parliament itself that
"approves" such appointments. Unfortunately, supervening
events forestalled our parliamentary experiment, and
beginning with the 1976 amendments and some 140 or so
amendments thereafter, we had reverted to the presidential
form, 32 without provisions for a commission on appointments.
In fine, while Presidential appointments, under the first
sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is a test
that operates as a mere safeguard against abuse with respect
to those appointments. It does not accord Congress any more
than the power to check, but not to deny, the Chief Executive's
appointing power or to supplant his appointees with its own. It
is but an exception to the rule. In limiting the Commission's
scope of authority, compared to that under the 1935
Constitution, I believe that the 1987 Constitution has simply
recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the
Constitution, as the supreme law of the land, should never
have any of its provisions interpreted in a manner that results
in absurd or irrational consequences.
The Commission on Appointments is an important
constitutional body which helps give fuller expression to the
principles inherent in our presidential system of government.
Its functions cannot be made innocuous or unreasonably
diminished to the confirmation of a limited number of
appointees. In the same manner that the President shares in
the enactment of laws which govern the nation, the legislature,
through its Commission on Appointments, gives assurance that
only those who can pass the scrutiny of both the President and
Congress will help run the country as officers holding high
appointive positions. The third sentence of the first paragraph
" ... 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." specifies only "officers lower in rank" as those
who may, by law, be appointed by the President alone. If as
expounded in the majority opinion, only the limited number of
officers in the first sentence of Section 16 require confirmation,
the clear intent of the third sentence is lost. In fact both the
second and third sentences become meaningless or
superfluous. Superfluity is not to be read into such an
important part of the Constitution.
I agree with the intervenor that all provisions of the
Constitution on appointments must be read together. In
providing for the appointment of members of the Supreme
Court and judges of lower courts (Section 9, Article VIII), the
Ombudsman and his deputies (Section 9, Article XI), the Vice
President as a member of cabinet (Section 3, Article VII) and,
of course, those who by law the President alone may appoint,
the Constitution clearly provides no need for confirmation. This
can only mean that all other appointments need confirmation.
Where there is no need for confirmation or where there is an
alternative process to confirmation, the Constitution expressly
so declares. Without such a declaration, there must be
confirmation.
The 1973 Constitution dispensed with confirmation by a
Commission on Appointments because the government it set
up was supposed to be a parliamentary one. The Prime
Minister, as head of government, was constantly accountable
to the legislature. In our presidential system, the interpretation
which Justice Cruz and myself espouse, is more democratic
and more in keeping with the system of government organized
under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority
opinion, is briefly as follows: Confirmation is required only for
the officers mentioned in the first sentence of Section 16, to
wit: (1) the heads of the executive departments; (2)
ambassadors, other public ministers and consuls; (3) officers
of the armed forces from the rank of colonel or naval captain;
and (4) other officers whose appointments are vested in the
President in the Constitution. No confirmation is required under
the second sentence for (1) all other officers whose
appointments are not otherwise provided for by law, and (2)
those whom the President may be authorized by law to
appoint. Neither is confirmation required by the third sentence
for those other officers lower in rank whose appointment is
vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign
Affairs, who is not the head of his department, does not have
to be confirmed by the Commission on Appointments, but the
ordinary consul, who is under his jurisdiction, must be
confirmed. The colonel is by any standard lower in rank than
the Chairman of the Commission on Human Rights, which was
created by the Constitution; yet the former is subject to
confirmation but the latter is not because he does not come
under the first sentence. The Special Prosecutor, whose
appointment is not vested by the Constitution in the President,
is not subject to confirmation under the first sentence, and
neither are the Governor of the Central Bank and the members
of the Monetary Board because they fall under the second
sentence as interpreted by the majority opinion. Yet in the
case of the multi-sectoral members of the regional consultative
commission, whose appointment is vested by the Constitution
in the President under Article X, Section 18, their confirmation
is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the
framers as they would lead to the absurd consequences we
should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to
be confirmed under the first sentence of Section 16, but that is
not the provision we ought to interpret. It is the second
sentence we must understand for a proper resolution of the
issues now before us. Significantly, although there was a long
discussion of the first sentence in the Constitutional
Commission, there is none cited on the second sentence either
in the Solicitor-General's comment or in the majority opinion.
We can therefore only speculate on the correct interpretation
of this provision in the light of the first and third sentences of
Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the
exception to the first sentence and holds that the two sets of
officers specified therein may be appointed by the President
without the concurrence of the Commission on Appointments.
This interpretation is pregnant with mischievous if not also
ridiculous results that presumably were not envisioned by the
framers.
One may wonder why it was felt necessary to include the
second sentence at all, considering the majority opinion that
the enumeration in the first sentence of the officers subject to
confirmation is exclusive on the basis of expressio unius est
exclusio alterius. If that be so, the first sentence would have
been sufficient by itself to convey the Idea that all other
appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second
sentence do not need confirmation, it was still felt necessary to
provide in the third sentence that the appointment of the other
officers lower in rank will also not need confirmation as long as
their appointment is vested by law in the President alone. The
third sentence would appear to be superfluous, too, again in
view of the first sentence.
More to the point, what will follow if Congress does not see fit
to vest in the President alone the appointment of those other
officers lower in rank mentioned in the third sentence?
Conformably to the language thereof, these lower officers will
need the confirmation of the Commission on Appointments
while, by contrast, the higher officers mentioned in the second
sentence will not.
Thus, a regional director in the Department of Labor and the
labor arbiters, as officers lower in rank than the bureau
director, will have to be confirmed if the Congress does not
vest their appointment in the President alone under the third
sentence. On the other hand, their superior, the bureau
director himself, will not need to be confirmed because,
according to the majority opinion, he falls not under the first
sentence but the second. This is carefulness in reverse, like
checking the bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the
Constitutional Commission was to restrict the powers of the
Presidency and so prevent the recurrence of another
dictatorship. Among the many measures taken was the
restoration of the Commission on Appointments to check the
appointing power which had been much abused by President
Marcos. We are now told that even as this body was revived to
limit appointments, the scope of its original authority has itself
been limited in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a
continuation of the Idea expressed in the first sentence and
simply mentions the other officers appointed by the President
who are also subject to confirmation. The second sentence is
the later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the first
sentence or, if necessary, reversing the original intention to
exempt bureau directors from confirmation. I repeat that there
were no debates on this matter as far as I know, which simply
means that my humble conjecture on the meaning of Section
16 is as arguable, at least, as the suppositions of the majority.
We read and rely on the same records. At any rate, this view is
more consistent with the general purpose of Article VII, which, I vote to grant the petition.
to repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page
520, Volume II, of the Record of the Constitutional
Convention:
Mr. Foz: Madam President, this is the third proposed
amendment on page 7, line 28, 1 propose to put a period (.)
after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts
the proposed amendment because it makes it clear that those
other officers mentioned therein do not have to be confirmed
by the Commission on Appointments.
However, the records do not show what particular part of
Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest that
the body was considering the first sentence of the said section,
which I reiterate is not the controversial provision. In any case,
although the excerpt shows that the proposed amendment of
Commissioner Foz was accepted by the committee, it is not
reflected, curiously enough, in the final version of Section 16
as a perusal thereof will readily reveal. Whether it was deleted
later in the session or reworded by the style committee or
otherwise replaced for whatever reason will need another
surmise on this rather confused Constitution.
I need only add that the records of the Constitutional
Commission are merely extrinsic aids and are at best
persuasive only and not necessarily conclusive. Interestingly,
some quarters have observed that the Congress is not
prevented from adding to the list of officers subject to
confirmation by the Commission on Appointments and cite the
debates on this matter in support of this supposition. It is true
enough that there was such a consensus, but it is equally true
that this thinking is not at all expressed, or even only implied,
in the language of Section 16 of Article VII. Which should
prevail then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in
nature, but there is no question either that it is not absolute or
unlimited. The rule re- established by the new Constitution is
that the power requires confirmation by the Commission on
Appointments as a restraint on presidential excesses, in line
with the system of checks and balances. I submit it is the
exception to this rule, and not the rule, that should be strictly
construed.
In my view, the only officers appointed by the President who
are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the
Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in
rank," but only when their appointment is vested by law in the
President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while
not covered by the first sentence of Section 16, comes under
the second sentence thereof as I would interpret it and so is
also subject to confirmation.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 111243 May 25, 1994
JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR M.
ENRIQUEZ III, respondents
Marlon B. Llaunder for petitioner.
QUIASON, J.:
This is a petition for prohibition filed by petitioner as a
"taxpayer," questioning the appointment of respondent Gabriel
Singson as Governor of the Bangko Sentral Ng Pilipinas for not
having been confirmed by the Commission on Appointments.
The petition seeks to enjoin respondent Singson from the
performance of his functions as such official until his
appointment is confirmed by the Commission on Appointments
and respondent Salvador M. Enriquez, Secretary of Budget and
Management, from disbursing public funds in payment of the
salaries and emoluments of respondent Singson.
I claiming to be entitled to a public office or position unlawfully
Respondent Singson was appointed Governor of the Bangko
Sentral by President Fidel V. Ramos on July 2, 1993, effective
on July 6, 1993 (Rollo, p. 10).
Petitioner argues that respondent Singson's appointment is null
and void since it was not submitted for confirmation to the
Commission on Appointments. The petition is anchored on the
provisions of Section 6 of R.A. No. 7653, which established the
Bangko Sentral as the Central Monetary Authority of the
Philippines. Section 6, Article II of R.A. No. 7653 provides:
Sec. 6. Composition of the Monetary Board. The powers and
functions of the Bangko Sentral shall be exercised by the Bangko
Sentral Monetary Board, hereafter referred to as the Monetary
Board, composed of seven (7) members appointed by the
President of the Philippines for a term of six (6) years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral, who shall be the
Chairman of the Monetary Board. The Governor of the Bangko
Sentral shall be head of a department and his appointment shall
be subject to confirmation by the Commission on Appointments.
Whenever the Governor is unable to attend a meeting of the
Board, he shall designate a Deputy Governor to act as his
alternate: Provided, That in such event, the Monetary Board
shall designate one of its members as acting Chairman . . .
(Emphasis supplied).
In their comment, respondents claim that Congress exceeded
its legislative powers in requiring the confirmation by the
Commission on Appointments of the appointment of the
Governor of the Bangko Sentral. They contend that an
appointment to the said position is not among the appointments
which have to be confirmed by the Commission on
Appointments, citing Section 16 of Article VII of the Constitution
which provides that:
Sec. 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 department, agencies,
commissions, or boards . . . (Emphasis supplied).
Respondents also aver that the Bangko Sentral has its own
budget and accordingly, its budgetary requirements are not
subject to the provisions of the General Appropriations Act.
We dismiss the petition.
II
The instant petition is in the nature of a quo warranto
proceeding as it seeks the ouster of respondent Singson and
alleges that the latter is unlawfully holding or exercising the
powers of Governor of the Bangko Sentral (Cf. Castro v. Del
Rosario, 19 SCRA 196 [1967]). Such a special civil action can
only be commenced by the Solicitor General or by a "person
held or exercised by another" (Revised Rules of Court, Rule 66,
Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held
that the petitioner therein, who did not aver that he was entitled
to the office of the City Engineer of Cabanatuan City, could not
bring the action for quo warranto to oust the respondent from
said office as a mere usurper.
Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910,
it was held that the question of title to an office, which must be
resolved in a quo warranto proceeding, may not be determined
in a suit to restrain the payment of salary to the person holding
such office, brought by someone who does not claim to be the
one entitled to occupy the said office.
It is obvious that the instant action was improvidently brought
by petitioner. To uphold the action would encourage every
disgruntled citizen to resort to the courts, thereby causing
incalculable mischief and hindrance to the efficient operation of
the governmental machinery (See Roosevelt v. Draper, 7 Abb.
Pr. 108, 23 N.Y. 218).
Its capstone having been removed, the whole case of petitioner
collapses. Hence, there is no need to resolve the question of
whether the disbursement of public funds to pay the salaries
and emoluments of respondent Singson can be enjoined.
Likewise, the Court refrains from passing upon the
constitutionality of Section 6, R.A. No. 7653 in deference to the
principle that bars a judicial inquiry into a constitutional question
unless the resolution thereof is indispensable for the
determination of the case (Fernandez v. Torres, 215 SCRA 489
[1992]).
However for the information of all concerned, we call attention
to our decision in Calderon v. Carale, 208 SCRA 254 (1992), with
Justice Isagani A. Cruz dissenting, where we ruled that Congress
cannot by law expand the confirmation powers of the
Commission on Appointments and require confirmation of
appointment of other government officials not expressly
mentioned in the first sentence of Section 16 of Article VII of
the Constitution.
WHEREFORE, the petition is DENIED. No pronouncement as to
costs.
SO ORDERED.
Feliciano, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug and Kapunan, JJ., concur.
Narvasa, C.J. and Cruz, JJ., are on leave.

Separate Opinions
PADILLA, J., concurring:
I concur in the result. Instead, however, of basing the petition's
dismissal mainly on technicality, I would anchor said dismissal
squarely on the ruling laid down by the Court in Calderon vs.
Carale, 208 SCRA 254 (1992), to the effect that appointments
by the President of the Philippines, which under the Constitution
(Sec. 16, Article VII) are not among those required to be
confirmed by the Commission on Appointments, may not, by
legislation, be made subject to such confirmation. This ruling
was a reiteration of the doctrine earlier laid down in Sarmiento
vs. Mison, (G.R. No. 79974, 156 SCRA 549, December 17, 1987)
and Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA 160, April
13, 1989).

# Separate Opinions

PADILLA, J., concurring:

I concur in the result. Instead, however, of basing the petition's
dismissal mainly on technicality, I would anchor said dismissal
squarely on the ruling laid down by the Court in Calderon vs.
Carale, 208 SCRA 254 (1992), to the effect that appointments
by the President of the Philippines, which under the Constitution
(Sec. 16, Article VII) are not among those required to be
confirmed by the Commission on Appointments, may not, by
legislation, be made subject to such confirmation. This ruling
was a reiteration of the doctrine earlier laid down in Sarmiento
vs. Mison, (G.R. No. 79974, 156 SCRA 549, December 17, 1987)
and Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA 160, April
13, 1989).
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner,
vs.
BARTOLOME CARALE, in his capacity as Chairman of
the National Labor Relations Commission, EDNA
BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G.
LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA,
VICENTE S.E. VELOSO III, IRENEO B. BERNARDO,
IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B.
PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO,
BERNABE S. BATUHAN and OSCAR N. ABELLA, in their
capacity as Commissioners of the National Labor
Relations Commission, and GUILLERMO CARAGUE, in
his capacity as Secretary of Budget and Management,
respondents.
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987
Constitution which provides:
Sec. 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
disapproval by the Commission on Appointments or until the
next adjournment of the Congress. 1
The power of the Commission on Appointments (CA for brevity)
to confirm appointments, contained in the aforequoted
paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento
III vs. Mison 2 as follows:
. . . it is evident that the position of Commissioner of the Bureau
of Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on
Appointments is required. As a matter of fact, as already pointed
out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of
the Commission on Appointments, the 1987 Constitution, on the
other hand, deliberately excluded the position of "heads of
bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.
. . . Consequently, we rule that the President of the Philippines
acted within her constitutional authority and power in appointing
respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission
on Appointments for confirmation. . . .
. . . In the 1987 Constitution, however, as already pointed out,
the clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the Commission
on Appointments, except appointments to offices expressly
mentioned in the first sentence of Sec. 16, Art.VII.
Consequently, there was no reason to use in the third sentence
of Sec. 16, Article VII the word "alone" after the word
"President" in providing that Congress may by law vest the
appointment of lower-ranked officers in the President alone, or
in the courts, or in the heads of departments, because the power
to appoint officers whom he (the president) may be authorized
by law to appoint is already vested in the President, without
need of confirmation by the Commission on Appointments, in
the second sentence of the same Sec. 16, Article VII." (emphasis
supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time
involving the appointment of the Chairman of the Commission
on Human Rights. Adhering to the doctrine in Mison, the Court
explained:
. . . Since the position of Chairman of the Commission on Human
Rights is not among the positions mentioned in the first
sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of
the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the CHR is to
be made without the review or participation of the Commission
on Appointments. To be more precise, the appointment of the
Chairman and Members of the Commission on Human Rights is
not specifically provided for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service Commission, the
Commission on Elections and the Commission on Audit, whose
appointments are expressly vested by the Constitution in the
president with the consent of the Commission on Appointments.
The president appoints the Chairman and Members of The
Commission on Human Rights pursuant to the second sentence
in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the
officers of government "whom he (the President) may be
authorized by law to appoint." And Section 2(c), Executive Order
No. 163, 5 May 1987, authorizes the President to appoint the
Chairman and Members of the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita
Quintos Deles, et al. v. The Commission on Constitutional
Commissions, et al.,4 the power of confirmation of the
Commission on Appointments over appointments by the
President of sectoral representatives in Congress was upheld
because:
. . . Since the seats reserved for sectoral representatives in
paragraph 2, Section 5, Art. VI may be filled by appointment by
the President by express provision of Section 7, Art. XVIII of the
Constitution, it is indubitable that sectoral representatives to the
House of Representatives are among the "other officers whose
appointments are vested in the President in this Constitution,"
referred to in the first sentence of Section 16, Art. VII whose
appointments are subject to confirmation by the Commission on
Appointments.
From the three (3) cases above-mentioned, these doctrines are
deducible:
1. Confirmation by the Commission on Appointments is
required only for presidential appointees mentioned in the first
sentence of Section 16, Article VII, including, those officers
whose appointments are expressly vested by the Constitution
itself in the president (like sectoral representatives to Congress
and members of the constitutional commissions of Audit, Civil
Service and Election).
2. Confirmation is not required when the President
appoints other government officers whose appointments are not
otherwise provided for by law or those officers whom he may
be authorized by law to appoint (like the Chairman and Members
of the Commission on Human Rights). Also, as observed in
Mison, when Congress creates inferior offices but omits to
provide for appointment thereto, or provides in an
unconstitutional manner for such appointments, the officers are
considered as among those whose appointments are not
otherwise provided for by law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law),
amending the Labor Code (PD 442) was approved. It provides
in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other
Commissioners shall all be appointed by the President, subject
to confirmation by the Commission on Appointments.
Appointments to any vacancy shall come from the nominees of
the sector which nominated the predecessor. The Executive
Labor Arbiters and Labor Arbiters shall also be appointed by the
President, upon recommendation of the Secretary of Labor and
Employment, and shall be subject to the Civil Service Law, rules
and regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed the
Chairman and Commissioners of the NLRC representing the
public, workers and employers sectors. The appointments stated
that the appointees may qualify and enter upon the performance
of the duties of the office. After said appointments, then Labor
Secretary Franklin Drilon issued Administrative Order No. 161,
series of 1989, designating the places of assignment of the
newly appointed commissioners.
This petition for prohibition questions the constitutionality and
legality of the permanent appointments extended by the
President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission (NLRC),
without submitting the same to the Commission on
Appointments for confirmation pursuant to Art. 215 of the Labor
Code as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715
which has in its favor the presumption of validity. RA 6715 is
not, according to petitioner, an encroachment on the appointing
power of the executive contained in Section 16, Art. VII, of the
Constitution, as Congress may, by law, require confirmation by
the Commission on Appointments of other officers appointed by
the President additional to those mentioned in the first sentence
of Section 16 of Article VII of the Constitution. Petitioner claims
that the Mison and Bautista rulings are not decisive of the issue
in this case for in the case at bar, the President issued
permanent appointments to the respondents without submitting
them to the CA for confirmation despite passage of a law (RA
6715) which requires the confirmation by the Commission on
Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA 6715
which amended the Labor Code transgressesSection 16, Article
VII by expanding the confirmation powers of the Commission on
Appointments without constitutional basis. Mison and Bautista
laid the issue to rest, says the Solicitor General, with the
following exposition:
As interpreted by this Honorable Court in the Mison case,
confirmation by the Commission on Appointments is required
exclusively for the heads of executive departments,
ambassadors, public ministers, consuls, officers of the armed
forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in the President by the
Constitution, such as the members of the various Constitutional
Commissions. With respect to the other officers whose
appointments are not otherwise provided for by the law and to
those whom the President may be authorized by law to appoint,
no confirmation by the Commission on Appointments is
required.
Had it been the intention to allow Congress to expand the list of
officers whose appointments must be confirmed by the
Commission on Appointments, the Constitution would have said
so by adding the phrase "and other officers required by law" at
the end of the first sentence, or the phrase, "with the consent
of the Commission on Appointments" at the end of the second
sentence. Evidently, our Constitution has significantly omitted to
provide for such additions.
The original text of Section 16 of Article VII of the present
Constitution as embodied in Resolution No. 517 of the
Constitutional Commission reads as follows:
"The President shall nominate and, with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the
rank of captain or commander, and all other officers of the
Government whose appointments are not herein 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 inferior officers in the President alone, in the courts or in the
heads of the department."
Three points should be noted regarding sub-section 3 of Section
10 of Article VII of the 1935 Constitution and in the original text
of Section 16 of Article VII of the present Constitution as
proposed in Resolution No. 517.
First, in both of them, the appointments of heads of bureaus
were required to be confirmed by the Commission on
Appointments.
Second, in both of them, the appointments of other officers,
"whose appointments are not otherwise provided for by law to
appoint" are expressly made subject to confirmation by the
Commission on Appointments. However, in the final version of
Resolution No. 517, as embodied in Section 16 of Article VII of
the present Constitution, the appointment of the above
mentioned officers (heads of bureaus; other officers whose
appointments are not provided for by law; and those whom he
may be authorized by law to appoint) are excluded from the list
of those officers whose appointments are to be confirmed by
the Commission on Appointments. This amendment, reflected in
Section 16 of Article VII of the Constitution, clearly shows the
intent of the framers to exclude such appointments from the
requirement of confirmation by the Commission on
Appointments.
Third, under the 1935 Constitution the word "nominate"
qualifies the entire Subsection 3 of Section 10 of Article VII
thereof.
Respondent reiterates that if confirmation is required, the three
(3) stage process of nomination, confirmation and appointment
operates. This is only true of the first group enumerated in
Section 16, but the word nominate does not any more appear
in the 2nd and 3rd sentences. Therefore, the president's
appointment pursuant to the 2nd and 3rd sentences needs no
confirmation. 6
The only issue to be resolved by the Court in the present case
is whether or not Congress may, by law, require confirmation by
the Commission on Appointments of appointments extended by
the president to government officers additional to those
expressly mentioned in the first sentence of Sec. 16, Art. VII of
the Constitution whose appointments require confirmation by
the Commission on Appointments.
To resolve the issue, we go back to Mison where the Court
stated:
. . . there are four (4) groups of officers whom the President
shall appoint. These four (4) groups, to which we will hereafter
refer from time to time, are:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the president may be authorized by law to
appoint;
Fourth, officers lower in rank whose appointments the Congress
may by law vest in the President alone. 7
Mison also opined:
In the course of the debates on the text of Section 16, there
were two (2) major changes proposed and approved by the
Commission. These were (1) the exclusion of the appointments
of heads of bureaus from the requirement of confirmation by
the Commission on Appointments; and (2) the exclusion of
appointments made under the second sentence of the section
from the same requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other
officers of the government whose appointments are not
otherwise provided for by law and those whom the President
may be authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within
the second sentence of Section 16, Article VII of the
Constitution, more specifically under the "third groups" of
appointees referred to in Mison, i.e. those whom the President
may be authorized by law to appoint. Undeniably, the Chairman
and Members of the NLRC are not among the officers mentioned
in the first sentence of Section 16, Article VII whose
appointments requires confirmation by the Commission on
Appointments. To the extent that RA 6715 requires confirmation
by the Commission on Appointments of the appointments of
respondents Chairman and Members of the National Labor
Relations Commission, it is unconstitutional because:
1) it amends by legislation, the first sentence of Sec. 16,
Art. VII of the Constitution by adding thereto appointments
requiring confirmation by the Commission on Appointments; and
2) it amends by legislation the second sentence of Sec.
16, Art. VII of the Constitution, by imposing the confirmation of
the Commission on Appointments on appointments which are
otherwise entrusted only with the President.
Deciding on what laws to pass is a legislative prerogative.
Determining their constitutionality is a judicial function. The
Court respects the laudable intention of the legislature.
Regretfully, however, the constitutional infirmity of Sec. 13 of
RA 6715 amending Art. 215 of the Labor Code, insofar as it
requires confirmation of the Commission on Appointments over
appointments of the Chairman and Member of the National
Labor Relations Commission (NLRC) is, as we see it, beyond
redemption if we are to render fealty to the mandate of the
Constitution in Sec. 16, Art. VII thereof.
Supreme Court decisions applying or interpreting the
Constitution shall form part of the legal system of the
Philippines.8 No doctrine or principle of law laid down by the
Court in a decision rendered en banc or in division may be
modified or reversed except by the Court sitting en banc.9
. . . The interpretation upon a law by this Court constitutes, in a
way, a part of the law as of the date that law was originally
passed, since this Court's construction merely establishes the
contemporaneous legislative intent that the law thus construed
intends to effectuate. The settled rule supported by numerous
authorities is a restatement of the legal maxim "legis
interpretado legis vim obtinent" the interpretation placed
upon the written law by a competent court has the force of law.
10
The rulings in Mison, Bautista and Quintos-Deles have
interpreted Art. VII, Sec. 16 consistently in one manner. Can
legislation expand a constitutional provision after the Supreme
Court has interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section 13, Republic Act No.
590, Congress says that taxing the salary of a judicial officer is
not a decrease of compensation. This is a clear example of
interpretation or ascertainment of the meaning of the phrase
"which shall not be diminished during their continuance in
office," found in Section 9, Article VIII of the Constitution,
referring to the salaries of judicial officers.
xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot pass
any declaratory act, or act declaratory of what the law was
before its passage, so as to give it any binding weight with the
courts. A legislative definition of a word as used in a statute is
not conclusive of its meaning as used elsewhere; otherwise, the
legislature would be usurping a judicial function in defining a
term. (11 Am. Jur., 914, emphasis supplied).
The legislature cannot, upon passing law which violates a
constitutional provision, validate it so as to prevent an attack
thereon in the courts, by a declaration that it shall be so
construed as not to violate the constitutional inhibition. (11 Am.,
Jur., 919, emphasis supplied).
We have already said that the Legislature under our form of
government is assigned the task and the power to make and
enact laws, but not to interpret them. This is more true with
regard to the interpretation of the basic law, the Constitution,
which is not within the sphere of the Legislative department. If
the Legislature may declare what a law means, or what a
specific portion of the Constitution means, especially after the
courts have in actual case ascertained its meaning by
interpretation and applied it in a decision, this would surely
cause confusion and instability in judicial processes and court
decisions. Under such a system, a final court determination of a
case based on a judicial interpretation of the law or of the
Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the
Constitution by the Legislative department that would be neither
wise nor desirable, being clearly violative of the fundamental
principles of our constitutional system of government,
particularly those governing the separation of powers.
14(Emphasis supplied)
Congress, of course, must interpret the Constitution, must
estimate the scope of its constitutional powers when it sets out
to enact legislation and it must take into account the relevant
constitutional prohibitions. 15
. . . The Constitution did not change with public opinion.
It is not only the same words, but the same in meaning . . . and
as long as it it speaks not only in the same words, but with the
same meaning and intent with which it spoke when it came from
the hands of its framers, and was voted and adopted by the
people . . . 16
The function of the Court in passing upon an act of Congress is
to "lay the article of the Constitution which is invoked beside the
statute which is challenged and to decide whether the latter
squares with the former" and to "announce its considered
judgment upon the question." 17
It can not be overlooked that Sec. 16, Art. VII of the 1987
Constitution was deliberately, not unconsciously, intended by
the framers of the 1987 Constitution to be a departure from the
system embodied in the 1935 Constitution where the
Commission on Appointments exercised the power of
confirmation over almost all presidential appointments, leading
to many cases of abuse of such power of confirmation.
Subsection 3, Section 10, Art. VII of the 1935 Constitution
provided:
3. The President shall nominate and with the consent of
the Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the Government
whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; . . .
The deliberate limitation on the power of confirmation of the
Commission on Appointments over presidential appointments,
embodied in Sec. 16, Art. VII of the 1987 Constitution, has
undoubtedly evoked the displeasure and disapproval of
members of Congress. The solution to the apparent problem, if
indeed a problem, is not judicial or legislative but constitutional.
A future constitutional convention or Congress sitting as a
constituent (constitutional) assembly may then consider either
a return to the 1935 Constitutional provisions or the adoption of
a hybrid system between the 1935 and 1987 constitutional
provisions. Until then, it is the duty of the Court 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.
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor
Code as amended by RA 6715 insofar as it requires the
confirmation of the Commission on Appointments of
appointments of the Chairman and Members of the National
Labor Relations Commission (NLRC) is hereby declared
unconstitutional and of no legal force and effect.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin, Grio-
Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon,
JJ., concur.
Bellosillo, J., took no part.
Separate Opinions
GUTIERREZ, JR., concurring:
When the issues in this petition were first raised in Sarmiento
III v. Mison (156 SCRA 549 [1987]), I joined Justice Cruz in a
dissent because I felt that the interpretation of Section 16,
Article VII by the majority of the Court results in absurd or
irrational consequences. The framers could not have intended
what the majority ruled to be the meaning of the provision.
When the question was again raised in Bautista v. Salonga (172
SCRA 160 [1989]), I reiterated my dissent and urged a re-
examination of the doctrine stated in Sarmiento v. Mison.
The issue is again before us. Even as I continue to believe that
the majority was wrong in the Sarmiento and Bautista cases, I
think it is time to finally accept the majority opinion as the
Court's ruling on the matter and one which everybody should
respect. There will be no end to litigation if, everytime a high
government official is appointed without confirmation by the
Commission on Appointments, another petition is filed with this
Court.
I, therefore, VOTE with the majority to DISMISS the PETITION.
CRUZ, J., dissenting:
I dissent on the basis of my dissent in Sarmiento v. Mison, which
I believe should be re-examined instead of being automatically
re-affirmed simply because of its original adoption. I do not
believe we should persist in error on the ground merely of
adherence to judicial precedent, however unsound.
Separate Opinion
GUTIERREZ, JR., J., concurring:
When the issues in this petition were first raised in Sarmiento
III v. Mison (156 SCRA 549 [1987]), I joined Justice Cruz in a
dissent because I felt that the interpretation of Section 16,
Article VII by the majority of the Court results in absurd or
irrational consequences. The framers could not have intended
what the majority ruled to be the meaning of the provision.
When the question was again raised in Bautista v. Salonga (172
SCRA 160 [1989]), I reiterated my dissent and urged a re-
examination of the doctrine stated in Sarmiento v. Mison.
The issue is again before us. Even as I continue to believe that
the majority was wrong in the Sarmiento and Bautista cases, I
think it is time to finally accept the majority opinion as the
Court's ruling on the matter and one which everybody should
respect. There will be no end to litigation if, everytime a high
government official is appointed without confirmation by the
Commission on Appointments, another petition is filed with this
Court.
I, therefore, VOTE with the majority to DISMISS the PETITION.
CRUZ, J., dissenting:
I dissent on the basis of my dissent in Sarmiento v. Mison, which
I believe should be re-examined instead of being automatically
re-affirmed simply because of its original adoption. I do not
believe we should persist in error on the ground merely of
adherence to judicial precedent, however unsound.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 107369 August 11, 1999
JESULITO A. MANALO, petitioner,
vs.
PEDRO G. SISTOZA, REGINO ARO III, NICASIO MA.
CUSTODIO, GUILLERMO DOMONDON, RAYMUNDO L.
LOGAN, WILFREDO R. REOTUTAR, FELINO C. PACHECO,
JR., RUBEN J. CRUZ, GERONIMO B. VALDERRAMA,
MERARDO G. ABAYA, EVERLINO B. NARTATEZ, ENRIQUE
T. BULAN, PEDRO J. NAVARRO, DOMINADOR M.
MANGUBAT, RODOLFO M. GARCIA and HONORABLE
SALVADOR M. ENRIQUEZ II In His Capacity as Secretary
of Budget and Management, respondents.
PURISIMA, J.:
The case at bar is not of first impression. The issue posed
concerning the limits of the power of the Commission on
Appointments to confirm appointments issued by the Chief
Executive has been put to rest in a number of cases. The court
finds no basis for departing from the ruling laid down in those
cases.
In this special civil action for Prohibition under Rule 65 of the
Revised Rules of Court, petitioners question the constitutionality
and legality of the permanent appointments issued by former
President Corazon C. Aquino to the respondent senior officers of
the Philippine National Police who were promoted to the ranks
of Chief Superintendent and Director without their appointments
submitted to the Commission on Appointments for confirmation
under Section 16, Article VII of the 1987 Constitution and
Republic Act 6975 otherwise known as the Local Government
Act of 1990. Impleaded in the case is the former Secretary of
Budget and Management Salvador M. Enriquez III, who
approved and effected the disbursements for the salaries and
other emoluments of subject police officers.1wphi1.nt
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the
Department of Interior and Local Government was signed into
law by former President Corazon C. Aquino. Pertinent provisions
of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP Chief.
The command and direction of the PNP shall be vested in the
Chief of the PNP who shall have the power to direct and control
tactical as well as strategic movements, deployment, placement,
utilization of the PNP or any of its units and personal, including
its equipment, facilities and other resources. Such command and
direction of the Chief of the PNP may be delegated to
subordinate officials with respect to the units under their
respective commands, in accordance with the rules and
regulations prescribed by the Commission. The Chief of the PNP
shall also have the power to issue detailed implementing policies
and instructions regarding personnel, funds, properties, records,
correspondence and such other matters as may be necessary to
effectively carry out the functions, powers and duties of the
Bureau. The Chief of the PNP shall be appointed by the President
from among the senior officers down to the rank of the chief
superintendent, subject to confirmation by the Commission on
Appointments: Provided, That the Chief of the PNP shall serve a
term of office not to exceed four (4) years: Provided, further,
That in times of war or other national emergency declared by
Congress, the President may extend such term of office."1
(emphasis supplied).
Sec. 31. Appointment of PNP Officers and Members. The
appointment of the officers and members of the PNP shall be
effected in the following manner:
(a) Police Officer I to Senior Police Officer IV Appointed by
the PNP regional director for regional personnel or by the Chief
of the PNP for the national headquarters personnel and attested
by the Civil Service Commission;
(b) Inspector to Superintendent Appointed by the Chief of the
PNP, as recommended by their immediate superiors, and
attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General
Appointed by the President upon recommendation of the Chief
of the PNP, with the proper endorsement by the Chairman of
the Civil Service Commission and subject to confirmation by the
Commission on Appointments; and
(d) Director General Appointed by the President from among
the senior officers down to the rank of chief superintendent in
the service, subject to confirmation by the Commission on
Appointments; Provided, That the Chief of the PNP shall serve a
tour of duty not to exceed four (4) years; Provided, further,
That, in times of war or other national emergency declared by
Congress, the President may extend such tour of duty.
(emphasis supplied).
In accordance therewith, on March 10, 1992, the President of
the Philippines, through then Executive Secretary Franklin M.
Drilon, promoted the fifteen (15) respondent police officers
herein, by appointing them to positions in the Philippine National
Police with the rank of Chief Superintendent to
Director2, namely:
Chief Supt. PEDRO G. SISTOZA Director
Chief Supt. REGINO ARO III Director
Chief Supt. NICASIO MA. Director
CUSTODIO
Chief Supt. GUILLERMO Director
DOMONDON
Chief Supt. RAYMUNDO L. Director
LOGAN
Senior Supt. WILFREDO Chief
REOTUTAR Superintendent
 Senior Supt. FELINO C. Chief B. The Philippine National Police is akin to the Armed Forces
PACHECO, JR. Superintendent where the Constitution specifically requires confirmation by the
Commission on Appointments.
II. Respondent Secretary in allowing and/or effecting
Senior Supt. RUBEN J. CRUZ Chief
disbursements in favor of respondent officers despite the
Superintendent
unconstitutionality and illegality of their appointments is acting
without or in excess of his jurisdiction or with grave abuse of
Senior Supt. GERONIMO B. Chief
discretion.
VALDERRAMA Superintendent
The petition must fail. It is not impressed with merit.
Petitioner theorizes that Republic Act 6975 enjoys the
Senior Supt. MERARDO G. ABAYA Chief
presumption of constitutionality and that every statute passed
Superintendent
by Congress is presumed to have been carefully studied and
considered before its enactment. He maintains that the respect
Senior Supt. EVERLINO Chief
accorded to each department of the government requires that
NARTATEZ Superintendent
the court should avoid, as much as possible, deciding
constitutional questions.
Senior Supt. ENRIQUE T. BULAN Chief
The Court agrees with petitioner. However, it is equally
Superintendent
demanded from the courts, as guardians of the Constitution, to
see to it that every law passed by Congress is not repugnant to
Senior Supt. PEDRO J. NAVARRO Chief
the organic law. Courts have the inherent authority to determine
Superintendent
whether a statute enacted by the legislature transcends the limit
delineated by the fundamental law.4 When it does, the courts
Senior Supt. DOMINADOR Chief
will not hesitate to strike down such unconstitutional law.
MANGUBAT Superintendent
The power to make appointments is vested in the Chief
Executive by Section 16, Article VII of the Constitution, which
Senior Supt. RODOLFO M. Chief provides:
GARCIA Superintendent Sec. 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the
The appointments of respondent police officers were in a executive departments, ambassadors, other public ministers and
permanent capacity. Their letters of appointment stated in part: consuls, or officers of the armed forces from the rank of colonel
By virtue hereof, they may qualify and enter upon the or naval captain, and other officers whose appointments are
performance of the duties of the office, furnishing this office and vested in him in this Constitution. He shall also appoint all other
the Civil Service Commission with copies of their oath of office.3 officers of the Government whose appointments are not
Without their names submitted to the Commission on otherwise provided for by law, and those whom he may be
Appointments for confirmation, the said police officers took their authorized by law to appoint. The Congress may, by law, vest
oath of office and assumed their respective positions. the appointment of other officers lower in rank in the President
Thereafter, the Department of Budget and Management, under alone, in the courts, or in the heads of departments, agencies,
the then Secretary Salvador M. Enriquez III, authorized commissions, or boards.
disbursements for their salaries and other emoluments. The President shall have the power to make appointments
On October 21, 1992, the petitioner brought before this Court during the recess of the Congress, whether voluntary or
this present original petition for prohibition, as a taxpayer suit, compulsory, but such appointments shall be effective only until
to assail the legality of subject appointments and disbursements disapproval by the Commission on Appointments or until the
made therefor. next adjournment of the Congress.
Petitioner contends that: The aforecited provision of the Constitution has been the subject
I. Respondent officers, in assuming their offices and discharging of several cases on the issue of the restrictive function of the
the functions attached thereto, despite their invalid Commission on Appointments with respect to the appointing
appointments, in view of the failure to secure the required power of the President. This court touched upon the historical
confirmation of the Commission on Appointments as required by antecedent of the said provision in the case of Sarmiento III vs.
the Constitution and the law, are acting without or in excess of Mison5 in which it was ratiocinated upon that Section 16 of
their jurisdiction or with grave abuse of discretion, considering Article VII of the 1987 Constitution requiring confirmation by the
that: Commission on Appointments of certain appointments issued by
A. Republic Act 6975 is a valid law that duly requires the President contemplates a system of checks and balances
confirmation of the appointments of officers from the rank of between the executive and legislative branches of government.
senior superintendent and higher by the Commission on Experience showed that when almost all presidential
Appointments. appointments required the consent of the Commission on
Appointments, as was the case under the 1935 Constitution, the
commission became a venue of "horse-trading" and similar
malpractices.6 On the other hand, placing absolute power to
make appointments in the President with hardly any check by
the legislature, as what happened under 1973 Constitution,
leads to abuse of such power. Thus was perceived the need to
establish a "middle ground" between the 1935 and 1973
Constitutions. The framers of the 1987 Constitution deemed it
imperative to subject certain high positions in the government
to the power of confirmation of the Commission on
Appointments and to allow other positions within the exclusive
appointing power of the President.1wphi1.nt
Conformably, as consistently interpreted and ruled in the leading
case of Sarmiento III vs. Mison 7, and in the subsequent cases
of Bautista vs. Salonga 8, Quintos-Deles vs. Constitutional
Commission9, and Calderon vs. Carale10; under Section 16,
Article VII, of the Constitution, there are four groups of officers
of the government to be appointed by the President:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the President may be authorized by law to
appoint;
Fourth, officers lower in rank whose appointments the Congress
may by law vest in the President alone.
It is well-settled that only presidential appointments belonging
to the first group require the confirmation by the Commission
on Appointments. The appointments of respondent officers who
are not within the first category, need not be confirmed by the
Commission on Appointments. As held in the case of Tarrosa vs.
Singson11 Congress cannot by law expand the power of
confirmation of the Commission on Appointments and require
confirmation of appointments of other government officials not
mentioned in the first sentence of Section 16 of Article VII of
the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of
Republic Act 6975 which empower the Commission on
Appointments to confirm the appointments of public officials
whose appointments are not required by the Constitution to be
confirmed. But the unconstitutionality of the aforesaid sections
notwithstanding, the rest of Republic Act 6975 stands. It is well-
settled that when provisions of law declared void are severable
from the main statute and the removal of the unconstitutional
provisions would not affect the validity and enforceability of the
other provisions, the statute remains valid without its voided
sections.12
It is petitioner's submission that the Philippine National Police is
akin to the Armed Forces of the Philippines and therefore, the
appointments of police officers whose rank is equal to that of
colonel or naval captain require confirmation by the Commission
on Appointments.
This contention is equally untenable. The Philippine National
Police is separate and distinct from the Armed Forces of the
Philippines. The Constitution, no less, sets forth the distinction.
Under Section 4 of Article XVI of the 1987 Constitution,
The Armed Forces of the Philippines shall be composed of a
citizen armed force which shall undergo military training and
service, as may be provided by law. It shall keep a regular force
necessary for the security of the State.
On the other hand, Section 6 of the same Article of the
Constitution ordains that:
The State shall establish and maintain one police force, which
shall be national in scope and civilian in character to be
administered and controlled by a national police commission.
The authority of local executives over the police units in their
jurisdiction shall be provided by law.
To so distinguish the police force from the armed forces,
Congress enacted Republic Act 6975 which states in part:
Sec. 2. Declaration of policy. It is hereby declared to be the
policy of the State to promote peace and order, ensure public
safety and further strengthen local government capability aimed
towards the effective delivery of the basic services to the
citizenry through the establishment of a highly efficient and
competent police force that is national in scope and civilian in
character. . . .
The policy force shall be organized, trained and equipped
primarily for the performance of police functions. Its national
scope and civilian character shall be paramount. No element of
the police force shall be military nor shall any position thereof
be occupied by active members of the Armed Forces of the
Philippines.
Thereunder, the police force is different from and independent
of the armed forces and the ranks in the military are not similar
to those in the Philippine National Police. Thus, directors and
chief superintendents of the PNP, such as the herein respondent
police officers, do not fall under the first category of presidential
appointees requiring the confirmation by the Commission on
Appointments.
In view of the foregoing disquisition and conclusion, the
respondent former Secretary Salvador M. Enriquez III of the
Department of Budget and Management, did not act with grave
abuse of discretion in authorizing and effecting disbursements
for the salaries and other emoluments of the respondent police
officers whose appointments are valid.
WHEREFORE, for lack of merit, the petition under consideration
is hereby DISMISSED. No pronouncement as to
costs.1wphi1.nt
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-
Reyes and Ynares Santiago, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 175352 January 18, 2011
DANTE V. LIBAN, REYNALDO M. BERNARDO and
SALVADOR M. VIARI, Petitioners,
vs.
RICHARD J. GORDON, Respondent.
PHILIPPINE NATIONAL RED CROSS, Intervenor.
RESOLUTION
LEONARDO-DE CASTRO, J.:
This resolves the Motion for Clarification and/or for
Reconsideration1 filed on August 10, 2009 by respondent
Richard J. Gordon (respondent) of the Decision promulgated by
this Court on July 15, 2009 (the Decision), the Motion for Partial
Reconsideration2 filed on August 27, 2009 by movant-intervenor
Philippine National Red Cross (PNRC), and the latters
Manifestation and Motion to Admit Attached Position Paper3 filed
on December 23, 2009.
In the Decision,4 the Court held that respondent did not forfeit
his seat in the Senate when he accepted the chairmanship of
the PNRC Board of Governors, as "the office of the PNRC
Chairman is not a government office or an office in a
government-owned or controlled corporation for purposes of the
prohibition in Section 13, Article VI of the 1987 Constitution."5
The Decision, however, further declared void the PNRC Charter
"insofar as it creates the PNRC as a private corporation" and
consequently ruled that "the PNRC should incorporate under the
Corporation Code and register with the Securities and Exchange
Commission if it wants to be a private corporation."6 The
dispositive portion of the Decision reads as follows:
WHEREFORE, we declare that the office of the Chairman of
the Philippine National Red Cross is not a government office or
an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the 1987
Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7,
8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National
Red Cross, or Republic Act No. 95, as amended by Presidential
Decree Nos. 1264 and 1643, are VOID because they create the
PNRC as a private corporation or grant it corporate powers.7
In his Motion for Clarification and/or for Reconsideration,
respondent raises the following grounds: (1) as the issue of
constitutionality of Republic Act (R.A.) No. 95 was not raised by
the parties, the Court went beyond the case in deciding such
issue; and (2) as the Court decided that Petitioners did not have
standing to file the instant Petition, the pronouncement of the
Court on the validity of R.A. No. 95 should be considered obiter.8
Respondent argues that the validity of R.A. No. 95 was a non-
issue; therefore, it was unnecessary for the Court to decide on
that question. Respondent cites Laurel v. Garcia,9 wherein the
Court said that it "will not pass upon a constitutional question
although properly presented by the record if the case can be
disposed of on some other ground" and goes on to claim that
since this Court, in the Decision, disposed of the petition on
some other ground, i.e., lack of standing of petitioners, there
was no need for it to delve into the validity of R.A. No. 95, and
the rest of the judgment should be deemed obiter.
In its Motion for Partial Reconsideration, PNRC prays that the
Court sustain the constitutionality of its Charter on the following
grounds:
A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL
REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED INTERVENOR
PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS.
1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT
CONTROVERSY.
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS
AMENDED WAS NEVER AN ISSUE IN THIS CASE.
B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE
NO. 1264 AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL
DECREE NO. 1264 WAS NOT A CREATION OF CONGRESS.
C. PNRCS STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS
OWN. WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS
AS AN AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY
SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL,
YET IT DOES NOT QUALIFY AS STRICTLY PRIVATE IN
CHARACTER.
In his Comment and Manifestation10 filed on November 9, 2009,
respondent manifests: (1) that he agrees with the position taken
by the PNRC in its Motion for Partial Reconsideration dated
August 27, 2009; and (2) as of the writing of said Comment and
Manifestation, there was pending before the Congress of the
Philippines a proposed bill entitled "An Act Recognizing the PNRC
as an Independent, Autonomous, Non-Governmental
Organization Auxiliary to the Authorities of the Republic of the
Philippines in the Humanitarian Field, to be Known as The
Philippine Red Cross."11
After a thorough study of the arguments and points raised by
the respondent as well as those of movant-intervenor in their
respective motions, we have reconsidered our pronouncements
in our Decision dated July 15, 2009 with regard to the nature of
the PNRC and the constitutionality of some provisions of the
PNRC Charter, R.A. No. 95, as amended.
As correctly pointed out in respondents Motion, the issue of
constitutionality of R.A. No. 95 was not raised by the parties,
and was not among the issues defined in the body of the
Decision; thus, it was not the very lis mota of the case. We have
reiterated the rule as to when the Court will consider the issue
of constitutionality in Alvarez v. PICOP Resources, Inc.,12 thus:
This Court will not touch the issue of unconstitutionality unless
it is the very lis mota. It is a well-established rule that a court
should not pass upon a constitutional question and decide a law
to be unconstitutional or invalid, unless such question is raised
by the parties and that when it is raised, if the record also
presents some other ground upon which the court may [rest] its
judgment, that course will be adopted and the constitutional
question will be left for consideration until such question will be
unavoidable.13
Under the rule quoted above, therefore, this Court should not
have declared void certain sections of R.A. No. 95, as amended
by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC
Charter. Instead, the Court should have exercised judicial
restraint on this matter, especially since there was some other
ground upon which the Court could have based its judgment.
Furthermore, the PNRC, the entity most adversely affected by
this declaration of unconstitutionality, which was not even
originally a party to this case, was being compelled, as a
consequence of the Decision, to suddenly reorganize and
incorporate under the Corporation Code, after more than sixty
(60) years of existence in this country.
Its existence as a chartered corporation remained unchallenged
on ground of unconstitutionality notwithstanding that R.A. No.
95 was enacted on March 22, 1947 during the effectivity of the
1935 Constitution, which provided for a proscription against the
creation of private corporations by special law, to wit:
SEC. 7. The Congress shall not, except by general law, provide
for the formation, organization, or regulation of private
corporations, unless such corporations are owned and controlled
by the Government or any subdivision or instrumentality
thereof. (Art. XIV, 1935 Constitution.)
Similar provisions are found in Article XIV, Section 4 of the 1973
Constitution and Article XII, Section 16 of the 1987 Constitution.
The latter reads:
SECTION 16. The Congress shall not, except by general law,
provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations
may be created or established by special charters in the interest
of the common good and subject to the test of economic
viability.
Since its enactment, the PNRC Charter was amended several
times, particularly on June 11, 1953, August 16, 1971,
December 15, 1977, and October 1, 1979, by virtue of R.A. No.
855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643,
respectively. The passage of several laws relating to the PNRCs
corporate existence notwithstanding the effectivity of the
constitutional proscription on the creation of private
corporations by law, is a recognition that the PNRC is not strictly
in the nature of a private corporation contemplated by the
aforesaid constitutional ban.
A closer look at the nature of the PNRC would show that there
is none like it not just in terms of structure, but also in terms of
history, public service and official status accorded to it by the
State and the international community. There is merit in PNRCs
contention that its structure is sui generis.
The PNRC succeeded the chapter of the American Red Cross
which was in existence in the Philippines since 1917. It was
created by an Act of Congress after the Republic of the
Philippines became an independent nation on July 6, 1946 and
proclaimed on February 14, 1947 its adherence to the
Convention of Geneva of July 29, 1929 for the Amelioration of
the Condition of the Wounded and Sick of Armies in the Field
(the "Geneva Red Cross Convention"). By that action the
Philippines indicated its desire to participate with the nations of
the world in mitigating the suffering caused by war and to
establish in the Philippines a voluntary organization for that
purpose and like other volunteer organizations established in
other countries which have ratified the Geneva Conventions, to
promote the health and welfare of the people in peace and in
war.14
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and
6373, and further amended by P.D. Nos. 1264 and 1643, show
the historical background and legal basis of the creation of the
PNRC by legislative fiat, as a voluntary organization impressed
with public interest. Pertinently R.A. No. 95, as amended by P.D.
1264, provides:
WHEREAS, during the meeting in Geneva, Switzerland, on 22
August 1894, the nations of the world unanimously agreed to
diminish within their power the evils inherent in war;
WHEREAS, more than one hundred forty nations of the world
have ratified or adhered to the Geneva Conventions of August
12, 1949 for the Amelioration of the Condition of the Wounded
and Sick of Armed Forces in the Field and at Sea, The Prisoners
of War, and The Civilian Population in Time of War referred to
in this Charter as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an
independent nation on July 4, 1946, and proclaimed on February
14, 1947 its adherence to the Geneva Conventions of 1929, and
by the action, indicated its desire to participate with the nations
of the world in mitigating the suffering caused by war and to
establish in the Philippines a voluntary organization for that
purpose as contemplated by the Geneva Conventions;
WHEREAS, there existed in the Philippines since 1917 a chapter
of the American National Red Cross which was terminated in
view of the independence of the Philippines; and
WHEREAS, the volunteer organizations established in other
countries which have ratified or adhered to the Geneva
Conventions assist in promoting the health and welfare of their
people in peace and in war, and through their mutual assistance
and cooperation directly and through their international
organizations promote better understanding and sympathy
among the people of the world;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution as Commander-in-Chief of all the Armed Forces of
the Philippines and pursuant to Proclamation No. 1081 dated
September 21, 1972, and General Order No. 1 dated September
22, 1972, do hereby decree and order that Republic Act No. 95,
Charter of the Philippine National Red Cross (PNRC) as amended
by Republic Acts No. 855 and 6373, be further amended as
follows:
Section 1. There is hereby created in the Republic of the
Philippines a body corporate and politic to be the voluntary
organization officially designated to assist the Republic of the
Philippines in discharging the obligations set forth in the Geneva
Conventions and to perform such other duties as are inherent
upon a national Red Cross Society. The national headquarters
of this Corporation shall be located in Metropolitan Manila.
(Emphasis supplied.)
The significant public service rendered by the PNRC can be
gleaned from Section 3 of its Charter, which provides:
Section 3. That the purposes of this Corporation shall be as
follows:
(a) To provide volunteer aid to the sick and wounded of armed
forces in time of war, in accordance with the spirit of and under
the conditions prescribed by the Geneva Conventions to which
the Republic of the Philippines proclaimed its adherence;
(b) For the purposes mentioned in the preceding sub-section, to
perform all duties devolving upon the Corporation as a result of
the adherence of the Republic of the Philippines to the said
Convention;
(c) To act in matters of voluntary relief and in accordance with
the authorities of the armed forces as a medium of
communication between people of the Republic of the
Philippines and their Armed Forces, in time of peace and in time
of war, and to act in such matters between similar national
societies of other governments and the Governments and
people and the Armed Forces of the Republic of the Philippines;
(d) To establish and maintain a system of national and
international relief in time of peace and in time of war and apply
the same in meeting and emergency needs caused by typhoons,
flood, fires, earthquakes, and other natural disasters and to
devise and carry on measures for minimizing the suffering
caused by such disasters;
(e) To devise and promote such other services in time of peace
and in time of war as may be found desirable in improving the
health, safety and welfare of the Filipino people;
(f) To devise such means as to make every citizen and/or
resident of the Philippines a member of the Red Cross.
The PNRC is one of the National Red Cross and Red Crescent
Societies, which, together with the International Committee of
the Red Cross (ICRC) and the IFRC and RCS, make up the
International Red Cross and Red Crescent Movement (the
Movement). They constitute a worldwide humanitarian
movement, whose mission is:
[T]o prevent and alleviate human suffering wherever it may be
found, to protect life and health and ensure respect for the
human being, in particular in times of armed conflict and other
emergencies, to work for the prevention of disease and for the
promotion of health and social welfare, to encourage voluntary
service and a constant readiness to give help by the members
of the Movement, and a universal sense of solidarity towards all
those in need of its protection and assistance.15
The PNRC works closely with the ICRC and has been involved in
humanitarian activities in the Philippines since 1982. Among
others, these activities in the country include:
1. Giving protection and assistance to civilians displaced or
otherwise affected by armed clashes between the government
and armed opposition groups, primarily in Mindanao;
2. Working to minimize the effects of armed hostilities and
violence on the population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the
public and private sectors.16
National Societies such as the PNRC act as auxiliaries to the
public authorities of their own countries in the humanitarian field
and provide a range of services including disaster relief and
health and social programmes.
The International Federation of Red Cross (IFRC) and Red
Crescent Societies (RCS) Position Paper,17 submitted by the
PNRC, is instructive with regard to the elements of the specific
nature of the National Societies such as the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and
its sister Red Cross and Red Crescent Societies, have certain
specificities deriving from the 1949 Geneva Convention and the
Statutes of the International Red Cross and Red Crescent
Movement (the Movement). They are also guided by the seven
Fundamental Principles of the Red Cross and Red Crescent
Movement: Humanity, Impartiality, Neutrality, Independence,
Voluntary Service, Unity and Universality.
A National Society partakes of a sui generis character. It is a
protected component of the Red Cross movement under Articles
24 and 26 of the First Geneva Convention, especially in times of
armed conflict. These provisions require that the staff of a
National Society shall be respected and protected in all
circumstances. Such protection is not ordinarily afforded by an
international treaty to ordinary private entities or even non-
governmental organisations (NGOs). This sui generis character
is also emphasized by the Fourth Geneva Convention which
holds that an Occupying Power cannot require any change in
the personnel or structure of a National Society. National
societies are therefore organizations that are directly
regulated by international humanitarian law, in contrast
to other ordinary private entities, including NGOs.
xxxx
In addition, National Societies are not only officially recognized
by their public authorities as voluntary aid societies, auxiliary to
the public authorities in the humanitarian field, but also benefit
from recognition at the International level. This is considered to
be an element distinguishing National Societies from other
organisations (mainly NGOs) and other forms of humanitarian
response.
x x x. No other organisation belongs to a world-wide Movement
in which all Societies have equal status and share equal
responsibilities and duties in helping each other. This is
considered to be the essence of the Fundamental Principle of
Universality.
Furthermore, the National Societies are considered to be
auxiliaries to the public authorities in the humanitarian field. x x
x.
The auxiliary status of [a] Red Cross Society means that it is
at one and the same time a private institution and a
public service organization because the very nature of
its work implies cooperation with the authorities, a link
with the State. In carrying out their major functions, Red
Cross Societies give their humanitarian support to official bodies,
in general having larger resources than the Societies, working
towards comparable ends in a given sector.
x x x No other organization has a duty to be its governments
humanitarian partner while remaining independent.18(Emphases
ours.)
It is in recognition of this sui generis character of the PNRC that
R.A. No. 95 has remained valid and effective from the time of
its enactment in March 22, 1947 under the 1935 Constitution
and during the effectivity of the 1973 Constitution and the 1987
Constitution.
The PNRC Charter and its amendatory laws have not been
questioned or challenged on constitutional grounds, not even in
this case before the Court now.
In the Decision, the Court, citing Feliciano v. Commission on
Audit,19 explained that the purpose of the constitutional
provision prohibiting Congress from creating private
corporations was to prevent the granting of special privileges to
certain individuals, families, or groups, which were denied to
other groups. Based on the above discussion, it can be seen that
the PNRC Charter does not come within the spirit of this
constitutional provision, as it does not grant special privileges to
a particular individual, family, or group, but creates an entity
that strives to serve the common good.
Furthermore, a strict and mechanical interpretation of Article
XII, Section 16 of the 1987 Constitution will hinder the State in
adopting measures that will serve the public good or national
interest. It should be noted that a special law, R.A. No. 9520,
the Philippine Cooperative Code of 2008, and not the general
corporation code, vests corporate power and capacities upon
cooperatives which are private corporations, in order to
implement the States avowed policy.
In the Decision of July 15, 2009, the Court recognized the public
service rendered by the PNRC as the governments partner in
the observance of its international commitments, to wit:
The PNRC is a non-profit, donor-funded, voluntary,
humanitarian organization, whose mission is to bring timely,
effective, and compassionate humanitarian assistance for the
most vulnerable without consideration of nationality, race,
religion, gender, social status, or political affiliation. The PNRC
provides six major services: Blood Services, Disaster
Management, Safety Services, Community Health and Nursing,
Social Services and Voluntary Service.
The Republic of the Philippines, adhering to the Geneva
Conventions, established the PNRC as a voluntary organization
for the purpose contemplated in the Geneva Convention of 27
July 1929. x x x.20 (Citations omitted.)
So must this Court recognize too the countrys
adherence to the Geneva Convention and respect the
unique status of the PNRC in consonance with its treaty
obligations. The Geneva Convention has the force and effect
of law.21 Under the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the
law of the land.22 This constitutional provision must be
reconciled and harmonized with Article XII, Section 16 of the
Constitution, instead of using the latter to negate the former.
By requiring the PNRC to organize under the Corporation Code
just like any other private corporation, the Decision of July 15,
2009 lost sight of the PNRCs special status under international
humanitarian law and as an auxiliary of the State, designated to
assist it in discharging its obligations under the Geneva
Conventions. Although the PNRC is called to be independent
under its Fundamental Principles, it interprets such
independence as inclusive of its duty to be the governments
humanitarian partner. To be recognized in the International
Committee, the PNRC must have an autonomous status, and
carry out its humanitarian mission in a neutral and impartial
manner.
However, in accordance with the Fundamental Principle of
Voluntary Service of National Societies of the Movement, the
PNRC must be distinguished from private and profit-making
entities. It is the main characteristic of National Societies that
they "are not inspired by the desire for financial gain but by
individual commitment and devotion to a humanitarian purpose
freely chosen or accepted as part of the service that National
Societies through its volunteers and/or members render to the
Community."23
The PNRC, as a National Society of the International Red Cross
and Red Crescent Movement, can neither "be classified as an
instrumentality of the State, so as not to lose its character of
neutrality" as well as its independence, nor strictly as a private
corporation since it is regulated by international humanitarian
law and is treated as an auxiliary of the State.24
Based on the above, the sui generis status of the PNRC is now
sufficiently established.1wphi1 Although it is neither a
subdivision, agency, or instrumentality of the government, nor
a government-owned or -controlled corporation or a subsidiary
thereof, as succinctly explained in the Decision of July 15, 2009,
so much so that respondent, under the Decision, was correctly
allowed to hold his position as Chairman thereof concurrently
while he served as a Senator, such a conclusion does not ipso
facto imply that the PNRC is a "private corporation" within the
contemplation of the provision of the Constitution, that must be
organized under the Corporation Code. As correctly mentioned
by Justice Roberto A. Abad, the sui generis character of PNRC
requires us to approach controversies involving the PNRC on a
case-to-case basis.
In sum, the PNRC enjoys a special status as an important ally
and auxiliary of the government in the humanitarian field in
accordance with its commitments under international law. This
Court cannot all of a sudden refuse to recognize its existence,
especially since the issue of the constitutionality of the PNRC
Charter was never raised by the parties. It bears emphasizing
that the PNRC has responded to almost all national disasters
since 1947, and is widely known to provide a substantial portion
of the countrys blood requirements. Its humanitarian work is
unparalleled. The Court should not shake its existence to the
core in an untimely and drastic manner that would not only have
negative consequences to those who depend on it in times of
disaster and armed hostilities but also have adverse effects on
the image of the Philippines in the international community. The
sections of the PNRC Charter that were declared void must
therefore stay.
WHEREFORE, premises considered, respondent Richard J.
Gordons Motion for Clarification and/or for Reconsideration and
movant-intervenor PNRCs Motion for Partial Reconsideration of
the Decision in G.R. No. 175352 dated July 15, 2009 are
GRANTED. The constitutionality of R.A. No. 95, as amended, the
charter of the Philippine National Red Cross, was not raised by
the parties as an issue and should not have been passed upon
by this Court. The structure of the PNRC is sui generis being
neither strictly private nor public in nature. R.A. No. 95 remains
valid and constitutional in its entirety. The dispositive portion of
the Decision should therefore be MODIFIED by deleting the
second sentence, to now read as follows:
WHEREFORE, we declare that the office of the Chairman of
the Philippine National Red Cross is not a government office or
an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the 1987 4 Liban v. Gordon, G.R. No. 175352, July 15, 2009, 593 SCRA
Constitution. 68.
SO ORDERED. 5 Section 13, Article VI of the Constitution reads:

TERESITA J. LEONARDO-DE CASTRO SEC. 13. No Senator or Member of the House of Representatives
Associate Justice may hold any other office or employment in the Government, or
WE CONCUR: any subdivision, agency, or instrumentality thereof, including
No part government-owned or controlled corporations or their
RENATO C. CORONA subsidiaries, during his term without forfeiting his seat. Neither
Chief Justice shall he be appointed to any office which may have been created
See dissenting opinion I join the dissent of J. or the emoluments thereof increased during the term for which
ANTONIO T. CARPIO CarpioCONCHITA he was elected.
6 Liban v. Gordon, supra note 4 at 97-98.
Associate Justice CARPIO MORALES
7 Id. at 98.
Associate Justice
8 Rollo, p. 256.

9 G.R. Nos. 92013 and 92047, July 25, 1990, 187 SCRA 797,

PRESBITERO J. ANTONIO EDUARDO 813.

VELASCO, JR. B. NACHURA 10 Rollo, pp. 421-431.

Associate Justice Associate Justice 11 Id. at 421.

12 G.R. No. 162243, November 29, 2006, 508 SCRA 498.

I join the dissent of J.
Carpio
ARTURO D. BRION
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
13
Id. at 552, citing Sotto v. Commission on Elections, 76 Phil.
DIOSDADO M.
516, 522 (1946).
PERALTA 14 Whereas clause, Republic Act No. 95 (1947).
Associate Justice 15 Pamphlet entitled "The Fundamental Principles of the Red
Cross and Red Crescent Movement" (April 2009), available with
the ICRC, http://www.icrc.org.
16 Id.
MARIANO C. DEL
17 Rollo, pp. 440-442.
CASTILLO
18 Id. at 440-441.
Associate Justice
19 464 Phil. 439 (2004).

20 Liban v. Gordon, supra note 4 at 77.

See my concurring MARTIN S. 21 Ebro III v. National Labor Relations Commission, 330 Phil. 93,

opinion VILLARAMA, JR. 101 (1996).

ROBERTO A. ABAD Associate Justice 22 1935 Constitution, ARTICLE II, SECTION 3. The

Associate Justice Philippines renounces war as an instrument of national policy

and adopts the generally accepted principles of international law
as part of the law of the Nation.
I join J. Carpio in his JOSE C. MENDOZA
1973 CONSTITUTION, ARTICLE II, SECTION 3. The
dissent Associate Justice
Philippines renounces war as an instrument of national policy,
JOSE PORTUGAL
adopts the generally accepted principles of international law as
PEREZ
part of the law of the land, and adheres to the policy of peace,
Associate Justice
equality, justice, freedom, cooperation, and amity with all
nations.
I agree with the dissent of J. Carpio
1987 CONSTITUTION, ARTICLE II, SECTION 2. The
MARIA LOURDES P. A. SERENO
Philippines renounces war as an instrument of national policy,
Associate Justice
adopts the generally accepted principles of international law as
CERTIFICATION
part of the law of the land and adheres to the policy of peace,
Pursuant to Section 13, Article VIII of the Constitution, I certify
equality, justice, freedom, cooperation, and amity with all
that the conclusions in the above Resolution had been reached
nations.
in consultation before the case was assigned to the writer of the 23 Supra note 15.
opinion of the Court. 24 Rollo, p. 433.
RENATO C. CORONA
Chief Justice
The Lawphil Project - Arellano Law Foundation

Footnotes
1 Rollo, pp. 256-264.

2 Id. at 397-418. DISSENTING OPINION

3 Id. at 434-439. CARPIO, J.:
I vote to deny the motions for reconsideration filed by
Respondent Richard J. Gordon (respondent Gordon) and
movant-intervenor Philippine National Red Cross (PNRC).
Respondent Gordon and the PNRC seek partial reconsideration
of the Courts Decision dated 15 July 2009, declaring that
Republic Act No. 95 (RA 95), insofar as it creates the PNRC as a
private corporation and grants it corporate powers, is void for
being unconstitutional. The Decision also declared that the
Office of the Chairman of the PNRC is not a government office
or an office in a government-owned or controlled corporation
for purposes of the prohibition in Section 13, Article VI of the
1987 Constitution, which reads:
SEC. 13. No Senator or Member of the House of Representatives
may hold any other office or employment in the Government, or
any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat. Neither
shall he be appointed to any office which may have been created
or the emoluments thereof increased during the term for which
he was elected.
Respondent Gordon and the PNRC are seeking reconsideration
of the portion of the Decision relating to the unconstitutionality
of certain provisions of RA 95.
This case originated from a petition filed by petitioners, seeking
to declare respondent Gordon as having forfeited his seat in the
Senate when he accepted the chairmanship of the PNRC Board
of Governors.
In the assailed Decision, this Court held that the PNRC is a
private organization performing public functions. The Philippine
government does not own or control the PNRC and neither the
President nor the head of any department, agency, commission
or board appoints the PNRC Chairman. Thus, the prohibition in
Section 13, Article VI of the 1987 Constitution is not applicable
to the office of the PNRC Chairman, which is not a government
office or an office in a government-owned or controlled
corporation.
Since the PNRC is a private corporation, the creation of the PNRC
through a special charter is violative of the constitutional
proscription against the creation of private corporations by
special law. The creation of the PNRC by special charter on 22
March 1947 through RA 95 contravenes Section 7, Article XIV of
the 1935 Constitution, as amended, which reads:
SEC. 7. The Congress shall not, except by general law, provide
for the formation, organization, or regulation of private
corporations, unless such corporations are owned or controlled
by the Government or any subdivision or instrumentality
thereof.
This provision prohibiting Congress from creating private
corporations, except by general law, is reiterated in the 19731
and 19872 Constitutions.
In its Motion for Partial Reconsideration, the PNRC maintains
that the decision declaring unconstitutional certain provisions of
RA 95 deprived the PNRC of its right to due process considering
that the PNRC was not a party to the case. Furthermore, the
PNRC states that the constitutionality of RA 95 was never an
issue in the case. Similarly, respondent Gordon posits in his
Motion for Clarification and Reconsideration that the Court
should not have passed upon the constitutionality of RA 95 since
such issue was not raised by the parties.
Generally, the Court will not pass upon a constitutional question
unless such question is raised by the parties.3However, as
explained by the Court in Fabian v. Hon. Desierto,4 the rule that
a challenge on constitutional grounds must be raised by a party
to the case is not an inflexible rule. In the Fabian case, the issue
of the constitutionality of Section 27 of Republic Act No. 67705
(RA 6770) was not presented as an issue by the parties.
Nevertheless, the Court ruled that Section 27 of RA 6770, which
provides for appeals in administrative disciplinary cases from the
Office of the Ombudsman to the Supreme Court, infringes on
the constitutional proscription against laws increasing the
appellate jurisdiction of the Supreme Court without its advice
and consent.
In this case, the constitutional issue was inevitably thrust upon
the Court upon its finding that the PNRC is a private corporation,
whose creation by a special charter is proscribed by the
Constitution. In view of the Courts finding that the PNRC is a
private corporation, it was imperative for the Court to address
the issue of the creation of the PNRC through a special charter.
The Constitution prohibits the creation of a private corporation
through a special law. The Court could not declare the PNRC a
private corporation created by the special law RA 95 without
running afoul of Section 16, Article XII of the 1987 Constitution.
To declare the PNRC a private corporation necessarily meant
declaring RA 95 unconstitutional. To declare the PNRC, a
creation of RA 95, a private corporation without declaring RA 95
unconstitutional would mean that Congress can create a private
corporation through a special law. This the Court could not do.
The fact that the constitutionality of RA 95 has not been
questioned for more than sixty (60) years does not mean that it
could no longer be declared unconstitutional. One is not
estopped from assailing the validity of a law just because such
law has been relied upon in the past and all that time has not
been attacked as unconstitutional.6Indeed, there is no
prescription to declare a law unconstitutional. Thus, in the case
of Moldex Realty, Inc. v. Housing and Land Use Regulatory
Board,7 this Court held that constitutional challenge can be
made anytime:
That the question of constitutionality has not been
raised before is not a valid reason for refusing to allow
it to be raised later. A contrary rule would mean that a law,
otherwise unconstitutional, would lapse into constitutionality by
the mere failure of the proper party to promptly file a case to
challenge the same. (Emphasis supplied)
More importantly, the Court granted the PNRCs motion
to intervene and the PNRC then filed its Motion for
Partial Reconsideration, in which the PNRC argued that
its charter is valid and constitutional. Thus, the PNRC,
the entity that is directly affected by the issue of the
constitutionality of RA 95, is in law and in fact a party to
this case, raising specifically the issue that its charter is
valid and constitutional. Moreover, although the original
parties did not raise as an issue the constitutionality of RA 95,
they were still afforded the opportunity to be heard on this
constitutional issue when they filed their respective motions for
reconsideration.
In its Motion for Partial Reconsideration, the PNRC claims that
the constitutional proscription against the creation of private
corporations by special law is not applicable in this case since
the PNRC was not created by Congress but by then President
Ferdinand Marcos, who issued Presidential Decree No. 12648
(PD 1264) which repealed RA 95. The PNRC insists that PD 1264
repealed and superseded RA 95. The PNRC maintains that since
PD 1264 was issued by President Marcos in the exercise of his
legislative power during the martial law period pursuant to
Proclamation 1081, then the constitutional prohibition does not
apply. Respondent Gordon agrees with the position taken by the
PNRC.
I disagree. Even if the PNRC derived its existence from PD 1264,
still the constitutional prohibition will apply. President Marcos
issued PD 1264 on 5 December 1977 during martial law period
when the President assumed extensive legislative power. Such
assumption of legislative power did not place President Marcos
above the Constitution. President Marcos could not issue
decrees or orders contrary to the provisions of the Constitution.
The exercise of legislative power by President Marcos under
martial law must still be in accordance with the Constitution
because legislative power cannot be exercised in violation of the
Constitution from which legislative power draws its existence.
The limits on legislative power is explained by the Court in
Government v. Springer,9 thus:
Someone 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 wall 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 it cannot leap.
(Emphasis supplied)
The 1973 Constitution, as amended, was in force when
President Marcos issued PD 1264. Under Section 1, Article VIII
of the 1973 Constitution, legislative power is vested in the
National Assembly. By virtue of Amendment No. 610of the 1973
Constitution, the President was granted legislative power. Thus,
under Amendment No. 6, President Marcos was granted
concurrent legislative authority with the interim Batasang
Pambansa.11 Considering that the legislative power of the
interim Batasang Pambansa and the regular National Assembly
is subject to the limitations imposed by the Constitution, then
more so for the emergency legislative power granted to the
President during the period of martial law. In fact, the Court has
declared void several Presidential Decrees or provisions thereof
for being unconstitutional.
In Demetria v. Alba,12 the Court declared void Paragraph 1 of
Section 44 of PD 1177 for being unconstitutional since it
empowers the President to indiscriminately transfer funds and
unduly extends the privilege granted under Section 16(5),
Article VIII of the 1973 Constitution. In Export Processing Zone
Authority v. Judge Dulay,13 the Court held that PD 1533 is
unconstitutional because it deprives the courts of their function
of determining just compensation in eminent domain cases and
eliminates the courts discretion to appoint commissioners
pursuant to Rule 67 of the Rules of Court. In subsequent cases,
similar provisions on just compensation found in expropriation
laws such as PD 42, 76, 464, 794, 1224, 1259, 1313, and 1517
were also declared void and unconstitutional for the same
reason and for being violative of due process.14 In Tuason v.
Register of Deeds, Caloocan City,15 PD 293 was declared void
and unconstitutional since it allows the President to exercise
judicial function and to take property without due process and
without compensation. In Manotok v. National Housing
Authority,16 the Court held that PD 1669 and 1670, which
expropriated certain properties, were void and unconstitutional
for violating due process of law.
In this case, PD 1264 contravenes Section 4, Article XIV of the
1973 Constitution which provides that " the National Assembly
shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such
corporations are owned or controlled by the government or any
subdivision or instrumentality thereof." This same prohibition is
found in Section 16, Article XII of the present Constitution. Thus,
just like RA 95, PD 1264 is also void insofar as it creates the
PNRC as a private corporation.
The PNRC further submits that "due to its peculiar nature, it
should be considered as a private, neutral and separate entity
independent of government control and supervision, but acting
as an auxiliary to government when performing humanitarian
functions, and specially created pursuant to the treaty
obligations of the Philippines to the Geneva Conventions."17
Thus, the PNRC maintains that its structure is sui generis and
that it is not strictly private in character since it performs certain
governmental functions. The PNRC posits that its argument is
reinforced by the Position Paper18 dated 7 December 2009 of
the International Federation of Red Cross and Red Crescent
Societies ("International Federation"), which reads in part:
A National Society PARTAKES OF A SUI GENERIS CHARACTER.
It is a protected component of the Red Cross Movement under
Articles 24 and 26 of the First Geneva Convention, especially in
times of armed conflict. These provisions require that the staff
of a National Society shall be respected and protected in all
circumstances. Such protection is not ordinarily afforded by an
international treaty to ordinary private entities or even non-
governmental organizations (NGOs). This sui generis character
is also emphasized by the Fourth Geneva Convention which
holds that an Occupying Property cannot require any change in
the personnel or structure of a National Society. National
Societies are therefore organizations that are directly regulated
by international humanitarian law, in contrast to other ordinary
private entities, including NGOs.
 xxx
Once recognized by its Government as an independent National
Society auxiliary to the public authorities in humanitarian field,
a National Society, if it fulfills the ten (10) conditions for
recognition, can be recognized by the International Committee
of the Red Cross and be admitted as member of the
International Federation of the Red Cross and Red Crescent
Societies. No other organization belongs to a world-wide
Movement in which all Societies have equal status and share
equal responsibilities and duties in helping each other. This is
considered to be the essence of the Fundamental Principle of
Universality.
Furthermore, the National Societies are considered to be
auxiliaries to the public authorities in the humanitarian field. The
concept of National Societies auxiliary to the public authorities
was reaffirmed in Resolution 3 of the 30thInternational
Conference of the Red Cross and Red Crescent, on 26-30
November 2007. This status, as you may see, is not only a
positive and distinct feature of any organization, but it is a
precondition of its existence and functioning as a member of the
International Red Cross and Red Crescent Movement.
The auxiliary status of Red Cross Society means that it
is at one and the same time a private institution and a
public service organization because the very nature of
its work implies cooperation with the authorities, a link
with the State. In carrying out their major functions, Red
Cross Societies give their humanitarian support to official bodies,
in general having larger resources than the Societies, working
towards comparable ends in a given sector.
This is also the essence of the Fundamental Principle of
Independence. No other humanitarian organization gives such
interpretation to its independence, although many claim that
they are independent. No other organization has a duty to
be its governments humanitarian partner while
remaining independent.
The Movement places much importance on the Principle
of Independence and the duty of the States Parties to
the Geneva Conventions to respect the adherence by all
the components of the Movement to the Fundamental
Principles. Before it can be recognized by the
International Committee, a National Society must have
autonomous status which allows it to operate in
conformity with the Fundamental Principles of the
Movement.
Thus, in protecting the independence of the National
Society in carrying out its humanitarian mission in a
neutral and impartial manner, it is crucial that it must be
free from any form of intervention from the government
at the level of the internal organization of the National
Society mainly its governance and management
structure. (Boldfacing supplied. Underscoring in the original.)
All private charitable organizations are doing public service or
activities that also constitute governmental functions.19 Hence,
the PNRC cannot claim that it is sui generis just because it is a
private organization performing certain public or governmental
functions. That the PNRC is rendering public service does not
exempt it from the constitutional prohibition against the creation
of a private corporation through a special law since the PNRC is,
admittedly, still a private organization. The express prohibition
against the creation of private corporations by special charter
under Section 16, Article XII of the 1987 Constitution cannot be
disregarded just because a private corporation claims to be sui
generis. The constitutional prohibition admits of no exception.
Even the International Federation specifies the nature of the
National Red Cross Society as a "private institution and a
public service organization." Furthermore, it emphasizes
the importance of maintaining and protecting the
independence of the National Society, free from any
form of intervention from the governmentparticularly
concerning its governance and management structure.
Full independence means that the National Societies are
prohibited from being owned or controlled by their host
government or from becoming government instrumentalities as
this would undermine their independence, neutrality, and
autonomy.
Indeed, the PNRC, as a member National Society of the
International Red Cross and Red Crescent Movement
(Movement) must meet the stringent requirement of
independence, autonomy, and neutrality in order to be
recognized as a National Society by the International Committee
of the Red Cross (ICRC). The conditions for recognition of
National Societies are enumerated in Article 4 of the Statutes of
the Movement, thus:
Article 4
Conditions for Recognition of National Societies
In order to be recognized in terms of Article 5,
paragraph 2 b)20 as a National Society, the Society shall
meet the following conditions:
1. Be constituted on the territory of an independent State where
the Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field is in force.
2. Be the only National Red Cross or Red Crescent Society of the
said State and be directed by a central body which shall alone
be competent to represent it in its dealings with other
components of the Movement.
3. Be duly recognized by the legal government of its
country on the basis of the Geneva Conventions and of
the national legislation as a voluntary aid society,
auxiliary to the public authorities in the humanitarian
field.
4. Have an autonomous status which allows it to operate
in conformity with the Fundamental Principles of the
Movement.
5. Use a name and distinctive emblem in conformity with
the Geneva Conventions and their Additional Protocols.
6. Be so organized as to be able to fulfil the tasks defined
in its own statutes, including the preparation in peace time
for its statutory tasks in case of armed conflict.
7. Extend its activities to the entire territory of the State.
8. Recruit its voluntary members and its staff without
consideration of race, sex, class, religion or political opinions.
9. Adhere to the present Statutes, share in the fellowship which
unites the components of the Movement and cooperate with
them.
10. Respect the Fundamental Principles of the Movement and
be guided in its work by the principles of international
humanitarian law.21
The conditions for recognition of National Societies do
not require that the State itself create the National
Society through a special charter. The absence of such
requirement is proper and necessary considering the
Movements emphasis on the importance of maintaining the
independence of the National Society, free from any form of
intervention from the government. However, it is required that
the National Society be officially recognized by the government
of its country as auxiliary to the public authorities in the
humanitarian field.
A decree granting official recognition to the National Society is
essential in order to distinguish it from other charitable
organizations in the country and to be entitled to the protection
of the Geneva Conventions in the event of armed conflict.22 The
content of the decree of recognition may vary from one country
to another but it should explicitly specify:
1. That the National Society is the countrys only Red Cross or
Red Crescent organization;
2. That it is autonomous in relation to the State;
3. That it performs its activities in conformity with the
Fundamental Principles; and
4. The conditions governing the use of the emblem.23
Thus, there is no specific requirement for the creation of
the National Society through a special charter. The State
does not have the obligation to create the National Society, in
our case, the PNRC. What is important is that the National
Society is officially recognized by the government as auxiliary to
the public authorities in the humanitarian services of the
government. This the Philippine government can accomplish
even without creating the PNRC through a special charter.
Besides, as auxiliaries in the humanitarian services of their host
governments, the National Societies are subject to the
laws of their respective countries.24 Thus, the National
Societies are bound by the laws of their host countries and must
submit to the Constitution of their respective host countries.
The Philippine Constitution prohibits Congress from creating
private corporations except by general law. I agree with the
PNRC that it is a private organization performing public
functions. Precisely because it is a private organization, the
PNRC charter whether it be RA 95 or PD 1264 is violative of
the constitutional proscription against the creation of private
corporations by special law. Nevertheless, keeping in mind the
treaty obligations of the Philippines under the Geneva
Conventions, the assailed Decision only held void those
provisions of the PNRC charter which create PNRC as a private
corporation or grant it corporate powers. The other provisions
respecting the governments treaty obligations remain valid,
thus:
The other provisions25 of the PNRC Charter remain valid
as they can be considered as a recognition by the State
that the unincorporated PNRC is the local National
Society of the International Red Cross and Red Crescent
Movement, and thus entitled to the benefits,
exemptions and privileges set forth in the PNRC Charter.
The other provisions of the PNRC Charter implement the
Philippine Governments treaty obligations under Article 4(5) of
the Statutes of the International Red Cross and Red Crescent
Movement, which provides that to be recognized as a National
Society, the Society must be "duly recognized by the legal
government of its country on the basis of the Geneva
Conventions and of the national legislation as a voluntary aid
society, auxiliary to the public authorities in the humanitarian
field."26 (Emphasis supplied)
This Courts paramount duty is to faithfully apply the provisions
of the Constitution to the present case. The Constitutional
prohibition under Section 16, Article XII of the 1987 Constitution
is clear, categorical, and absolute:
SEC. 16. The Congress, shall not, except by general law,
provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations
may be created or established by special charters in the interest
of the common good and subject to the test of economic
viability. (Emphasis supplied)
Since the constitutional prohibition admits of no exception, this
Court has no recourse but to apply the prohibition to the present
case. This Court has no power to make PNRC an exception to
Section 16, Article XII of the 1987 Constitution.
The PNRC could either choose to remain unincorporated or it
could adopt its own articles of incorporation and by-laws and
incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private
corporation.
Accordingly, I vote to DENY the Motions for Reconsideration.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1 Section 4, Article XIV of the 1973 Constitution reads:
SEC. 4. The National Assembly shall not, except by general law,
provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned or controlled
by the Government or any subdivision or instrumentality
thereof.
2
Section 16, Article XII of the 1987 Constitution reads:
SEC. 16. The Congress, shall not, except by general law, provide
for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations
may be created or established by special charters in the interest
of the common good and subject to the test of economic
viability.
3 Moldex Realty, Inc. v. Housing and Land Use Regulatory Board,
G.R. No. 149719, 21 June 2007, 525 SCRA 198.
4 356 Phil. 787 (1998).
5 Ombudsman Act of 1989.
6 British American Tobacco v. Camacho, G.R. No. 163583, 20
August 2008, 562 SCRA 511.
7 G.R. No. 149719, 21 June 2007, 525 SCRA 198, 204.
8 AMENDING REPUBLIC ACT NO. 95 (As amended by Republic
Acts No. 855 and 6373). AN ACT TO INCORPORATE THE
PHILIPPINE NATIONAL RED CROSS.
9 50 Phil. 259, 309 (1927).
10 Amendment No. 6 reads:
Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the
regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue
the necessary decrees, orders or letters of instruction, which
shall form part of the law of the land.
11 Legaspi v. Minister of Finance, No. L-58289, 24 July 1982, 115
SCRA 418.
12 232 Phil. 222 (1987).
13 233 Phil. 313 (1987).
14 Municipality of Talisay v. Ramirez, G.R. No. 77071, 22 March
1990, 183 SCRA 528; Belen v. Court of Appeals, 243 Phil. 443
(1988); Leyva v. Intermediate Appellate Court, 239 Phil.47
(1987); Sumulong v. Hon. Guerrero, 238 Phil. 462 (1987);
Ignacio v. Judge Guerrero, 234 Phil. 364 (1987).
15 241 Phil. 650 (1988).
16 Nos. L-55166 and L-55167, 21 MAY 1987, 150 SCRA 89.
17 PNRCs Motion for Partial Reconsideration, p. 17; rollo, p. 413.
(Boldfacing supplied)
18 Annex "A." The Position Paper was written by Razia Essack-
Kauaria, Director of Governance Support and Global Monitoring,
International Federation of Red Cross and Red Crescent
Societies.
19 The following are some of the private charitable organizations
in the Philippines: (1) CHILDHOPE Asia Philippines, Inc. - is
registered in 1995 under the Securities and Exchange
Commission and whose principal purpose is to advocate for the
cause of street children [CHILDHOPE Asia Website,
http://www.childhope.org.ph/about-us.html (visited 2 to use the words Red Cross or Geneva Cross or to use the
September 2010)]; (2) PATH Foundation Philippines, Inc. (PFPI)
- is a private, charitable organization whose mission is to
improve health and contribute to environmentally sustainable
development, particularly in under-served areas of the
Philippines. [PFPI Website, http://www.pfpi.org/about.html
(visited 2 September 2010)]; (3) The Philippine Community
Fund - is a registered charitable organization, whose mission is
to permanently improve the quality of life for the poorest Filipino
communities, through education, nutrition, health, medical and
family enhancement programs, regardless of religion, race or
political boundaries [The Philippine Community Fund Website,
http://p-c-f.org/about_us/index.php (visited 2 September
2010)].
20 Article 5, paragraph 2 b) states:
2. The role of the International Committee, in accordance with
its Statutes, is in particular:
xxx
b) to recognize any newly established or reconstituted National
Society, which fulfils the conditions for recognition set out in
Article 4, and to notify other National Societies of such
recognition.
21 Statutes and Rules of Procedure of the International Red
Cross and Red Crescent Movement, ICRC Publication, p. 9.
22 The Fundamental Principles of the Red Cross and Red
Crescent, ICRC Publication, p. 18.
23 The Fundamental Principles of the Red Cross and Red
Crescent, ICRC Publication, pp. 18-19.
24 Discover the ICRC, ICRC Publication, p. 10.
25 The valid provisions are Sections 4(b) and (c), 14, 15, 16, and
17:
SEC. 4. In furtherance of the purposes mentioned in the
preceding sub-paragraphs, the Philippine National Red Cross
shall:
xxx
b. Be exempt from payment of all duties, taxes, fees, and other
charges of all kinds on all importations and purchases for its
exclusive use, on donations for its disaster relief work and other
Red Cross services, and in its benefits and fund raising drives all
provisions of law to the contrary notwithstanding.
c. Be allotted by the Philippine Charity Sweepstakes Office one
lottery draw yearly for the support of its disaster relief
operations in addition to its existing lottery draws for the Blood
Program.
SEC. 14. It shall be unlawful for any person to solicit, collect or
receive money, materials, or property of any kind by falsely
representing or pretending himself to be a member, agent or
representative of the Philippine National Red Cross.
SEC. 15. The use of the name Red Cross is reserved exclusively
to the Philippine National Red Cross and the use of the emblem
of the red Greek cross on a white ground is reserved exclusively
to the Philippine National Red Cross, medical services of the
Armed Forces of the Philippines and such other medical facilities
or other institutions as may be authorized by the Philippine
National Red Cross as provided under Article 44 of the Geneva
Conventions. It shall be unlawful for any other person or entity
emblem of the red Greek cross on a white ground or any
designation, sign, or insignia constituting an imitation thereof
for any purpose whatsoever.
SEC. 16. As used in this Decree, the term person shall include
any legal person, group, or legal entity whatsoever nature, and
any person violating any section of this Article shall, upon
conviction therefore be liable to a fin[e] of not less than one
thousand pesos or imprisonment for a term not exceeding one
year, or both, at the discretion of the court, for each and every
offense. In case the violation is committed by a corporation or
association, the penalty shall devolve upon the president,
director or any other officer responsible for such violation.
SEC. 17. All acts or parts of acts which are inconsistent with the
provisions of this Decree are hereby repealed.
26 Decision dated 15 July 2009, pp. 22-23.
The Lawphil Project - Arellano Law Foundation
 CONCURRING OPINION
ABAD, J.:
On July 15, 2009 the Court rendered a decision partially voiding
Republic Act 95 (R.A. 95), the charter of the Philippine National
Red Cross (PNRC) as amended by Presidential Decrees 1264 and
1643 (P.D. 1264 and 1643). The Court ruled that Congress
enacted the PNRC Charter in violation of Section 7, Article XIV
of the 1935 Constitution, which states:
SEC. 7. The Congress shall not, except by general law, provide
for the formation, organization, or regulation of private
corporations, unless such corporations are owned or controlled
by the Government or any subdivision or instrumentality
thereof.
The Court based its decision on a finding that the PNRC is a
private corporation which Congress could not create by special
law. Like any other private corporation, the PNRC can only be
formed and organized under a general enabling law like the
Corporation Code.
The decision stemmed from a petition that petitioners Dante
Liban, et al (Liban, et al) filed with the Court to declare
respondent Senator Richard J. Gordon (Sen. Gordon) as having
forfeited his Senate seat under Section 13, Article VI of the 1987
Constitution.1 Sen. Gordon had been elected Chairman of the
Board of Governors of the PNRC, which the Court classified in
Camporedondo v. NLRC2 as a government-owned and controlled
corporation (GOCC). Consequently, he automatically forfeited
his Senate seat for holding an incompatible office in a GOCC.
Parenthetically, in resolving the case, the Court held that Liban,
et al had no standing to file the petition, as it is a quo warranto
case that could only be brought by the Government or an
individual who claims entitlement to the public office. Since
Liban, et al did not seek the Senators seat, they were not proper
parties to bring the action.
Despite Liban, et als lack of standing, however, the Court chose
to address the merits of their petition. The main issue was:
"whether the office of the PNRC Chairman is a government office
or an office in a government-owned or controlled corporation
for purposes of the prohibition in Section 13, Article VI of the
Constitution."3
According to the Court, the PNRC is a private organization
performing public functions. Congress established it in
adherence to the Geneva Conventions for the purpose
contemplated under the treaties. The PNRC is a member
National Society of the International Red Cross and Red
Crescent Movement and is guided and bound by its seven
Fundamental Principles.4 To be recognized as a National Society,
the Statutes of the International Red Cross and Red Crescent
Movement required that the PNRC be autonomous or
independent.
Due to this requirement, the PNRC must not appear to be an
instrument or agency of the government for, "otherwise, it
cannot merit the trust of all and cannot effectively carry out its
mission."5 It must, in case of invasion or an internal war,
maintain its neutrality and independence to be able to fulfill its
humanitarian tasks. It cannot choose to treat only the wounded
on one side.
Moreover, the PNRC cannot be government-owned because it
does not receive appropriations from Congress or possess
government assets. It is funded by voluntary donations from
private contributors. The government does not have control
over its affairs. While the President of the Philippines appoints
six of the PNRC Board of Governors, the overwhelming majority
of the thirty-member board is elected by private sector
members. The PNRC Chairman is not appointed by or under the
control of the President of the Philippines. He is elected by the
organizations governing board. These all prove that the position
of PNRC Chairman is a private, not a government office.
Additionally, the Court held that the Camporedondo ruling relied
on by Liban, et al was erroneous. The Courts conclusion in that
casethat the PNRC is a GOCCis based solely on the fact that
it was Congress which created PNRC under a special law. The
case failed to consider, however, that the 1987 Administrative
Code defines a GOCC as "any agency organized as a stock or
non-stock corporation, vested with functions relating to public
needs x x x, and owned by the Government directly or through
its instrumentalities x x x."6 Since the government did not own
PNRC, it cannot be a GOCC under such definition.
The Court thus concluded that Sen. Gordon did not forfeit his
Senate seat.
As stated earlier, the Court partially voided the PNRC Charter on
the ground that Congress has been constitutionally prohibited
from creating private corporations by special law. The Court
declared as void those provisions of the PNRC Charter that
related to its creation and those that granted it corporate
powers.7 What remained of the Charter, said the Court,8 served
"as recognition by the State that the unincorporated PNRC is the
local National Society of the International Red Cross and Red
Crescent Movement." The surviving provisions supposedly
implemented the Philippine Governments treaty obligations
under Article 4(5) of the Statutes of the Movement which
required a National Society to be "duly recognized by the legal
government of its country on the basis of the Geneva
Conventions and of the national legislation."9
Justice Antonio Eduardo B. Nachura dissented and was joined
by four other members of the Court.10 First, he argued that
Liban, et al had standing to file the petition, which he
characterized as one for prohibition and not quo warranto. The
petition actually sought an injunction against a continuing
violation of the Constitution and involved a constitutional issue
with great impact on public interest. Thus, the petition deserved
the attention of the Court in view of its seriousness, novelty, and
weight as precedent.
According to Justice Nachura, since no private corporation can
have a special charter under the Constitution, it follows that the
PNRC is a GOCC. As held in Camporedondo and Baluyot v.
Holganza,11 the test for determining whether a corporation is a
GOCC is simply whether it was created under its own charter for
the exercise of a public function or by incorporation under the
general corporation law. The definition of a GOCC under the
1987 Administrative Code, on the other hand, is broad enough
to admit of other distinctions as to the kinds of GOCCs.
The more crucial factor to consider, said Justice Nachura, is the
definitions reference to the corporation being vested with
functions relating to public needs. In this regard, the PNRC
Charter states that it is created as a "voluntary organization
officially designated to assist the Republic of the Philippines in
discharging the obligations set forth in the Geneva Convention
x x x."12 These obligations are undoubtedly public or
governmental in character. Hence, the PNRC is engaged in the
performance of the governments public functions.
Justice Nachura added that, at the very least, the PNRC should
be regarded as a government instrumentality under the 1987
Administrative Code. An instrumentality "refers to any agency of
the National Government not integrated within the department
framework, vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers, administering
special funds, and enjoying operational autonomy, usually
through a charter."13The PNRCs organizational attributes, said
Justice Nachura, are consistent with this definition.
The dissent then cites the unsettling ripple effect which the main
ruling could create on numerous Court decisions, such as those
dealing with the jurisdiction of the Civil Service Commission
(CSC) and the authority of the Commission on Audit (COA). It
also noted the absurdity of partially invalidating the PNRC
Charter as this would have the consequence of imposing
obligations and providing an operational framework for a legally
non-existing entity.
Justice Nachura finally warns against the PNRCs ultimate
demise if it were regarded as a private corporation. Because of
possible violations of the equal protection clause and penal
statutes, the PNRC may no longer be extended tax exemptions
and official immunity or be given any form of support by the
National Government, local government units, and the Philippine
Charity Sweepstakes Office (PCSO). If the PNRC is consequently
obliterated, the Philippines will be shirking its obligations under
the Geneva Conventions.
The dissent finally concluded that Sen. Gordon forfeited his
Senate seat for holding two incompatible offices.
Although the main ruling favored Sen. Gordon, he filed a motion
for clarification and reconsideration of the Courts decision.14 He
said that the Court decided the case beyond what was
necessary, considering that the parties never raised the
constitutionality of the PNRC Charter as an issue. He invoked
the rule that the Court will not pass upon a constitutional issue
unless it is the very lis mota of the case or if it can be disposed
of on some other ground. Since the Court held that Liban, et al
had no personality to file the petition, the Court should have
simply refrained from delving into the constitutionality of the
PNRC Charter. Sen. Gordon thus submits that the Court should
regard the declaration of unconstitutionality of the PNRC Charter
obiter dictum.
Liban, et al also filed a motion for reconsideration of the Courts
decision, essentially adopting the thesis of Justice Nachura.15
Subsequently, the PNRC, which was not a party to the case,
sought to intervene and filed a motion for reconsideration of the
Courts decision.16 It claimed that, although the Court annulled
its very existence, it did not give the PNRC the chance to defend
itself and prove the validity of its creation. The PNRC pointed
out that P.D. 1264 and 1643 completely repealed R.A. 95.
Consequently, the PNRC no longer owed its creation to Congress
but to President Marcos pursuant to his power of executive
legislation. The constitutional bar is on Congress.
As for its organizational nature, the PNRC asserts that it is
neither a private nor a government corporation but a sui generis
entity, a unique being with no equivalent in corporate
organizations. While the PNRC performs certain public services,
its neutrality and independence would be compromised if it were
to be deemed as a government-owned corporation or
instrumentality. Besides, it is in fact neither owned nor
controlled by the government.
The PNRC also stressed that, although it has private
characteristics, it was not created for profit or gain but in
compliance with treaty obligations under the Geneva
Conventions. As such, it is an auxiliary of government in the
performance of humanitarian functions under international law.
To support its stand that it is a sui generis entity, the PNRC
submitted a position paper17 prepared by the International
Federation of Red Cross and Red Crescent Societies (the
Federation) explaining the specific nature of National Societies
like the PNRC.
There is a need to examine the Courts decision in this case
considering its far reaching effects. Allowing such decision to
stand will create innumerable mischief that would hamper the
PNRCs operations. With a void juridical personality, it cannot
open a bank account, issue tax-exempt receipts for donations,
or enter into contracts for delivery of rescue reliefs like blood,
medicine, and food. Its officers would be exposed to suits in
their personal capacities. The validity of its past transactions
would be open to scrutiny and challenge. Neither the country
nor the PNRC needs this.
FIRST. Congress created the PNRC to comply with the countrys
commitments under the Geneva Conventions. The treaties
envisioned the establishment in each country of a voluntary
organization that would assist in caring for the wounded and
sick of the armed forces during times of armed conflict. Upon
proclaiming its adherence to the Geneva Conventions, the
Republic of the Philippines forthwith created the PNRC for the
purpose contemplated by the treaties. Its creation was not
privately motivated, but borne of the Republics observance of
treaty obligations. The "whereas clause" of P.D. 1643 or the
revised PNRC Charter lays down this basic premise:
xxxx
WHEREAS, more than one hundred forty nations of the world
have ratified or adhered to the Geneva Conventions of August
12, 1949 for the Amelioration of the Condition of the Wounded
and Sick of Armed Forces and at Sea, The Prisoners of War, and
The Civilian Population in Time of War referred to in this Charter
as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an
independent nation on July 4, 1946, and proclaimed on February
14, 1947 its adherence to the Geneva Conventions of 1929, and
by the action, indicated its desire to participate with the nations
of the world in mitigating the suffering caused by war and to
establish in the Philippines a voluntary organization for that
purpose as contemplated by the Geneva Conventions;
xxxx
It is thus evident that the PNRCs creation derived primarily from
the Geneva Conventions. When Congress created the PNRC, it
did not intend to form either a private or government-owned
corporation with the usual powers and attributes that such
entities might possess. Rather, it set out to form an organization
that would be responsive to the requirements of the Geneva
Conventions. Section 1 of the PNRC Charter thus provides:
SECTION 1. There is hereby created in the Republic of the
Philippines a body corporate and politic to be the voluntary
organization officially designated to assist the Republic of the
Philippines in discharging the obligations set forth in the Geneva
Conventions and to perform such other duties as are inherent
upon a national Red Cross Society. The national headquarters
of this Corporation shall be located in Metropolitan Manila.
As a voluntary organization tasked to assist the Republic in
fulfilling its commitments under the Geneva Conventions, the
PNRC is imbued with characteristics that ordinary private or
government organizations do not possess. Its charters direct
reference to the Geneva Conventions gives the PNRC a special
status in relation to governments of any form, as well as a
unique place in international humanitarian law.18 Since the
impetus for the PNRCs creation draws from the countrys
adherence to the treaties, it is in this context that its
organizational nature should be viewed and understood.
SECOND. The PNRC is a National Society of the Red Cross
Movement and is recognized by both the International
Committee of the Red Cross (ICRC) and the International
Federation of Red Cross and Red Crescent Societies. The PNRC
is regarded as a component of the Movement with concomitant
rights and obligations under international humanitarian law. Its
status as a recognized National Society has imbued it with
attributes that ordinary private corporations or government
entities do not possess. It is a sui generis entity that has no
precise legal equivalent under our statutes.
The PNRC is not an ordinary private corporation within the
meaning of the Corporation Code. As stated earlier, its creation
was not privately motivated but originated from the States
obligation to comply with international law. The State organized
the PNRC to assist it in discharging its commitments under the
Geneva Conventions as an "auxiliary of the public authorities in
the humanitarian field."19 It was not established by private
individuals for profit or gain, but by the State itself pursuant to
the objectives of international humanitarian law.
The PNRC is not an ordinary charitable organization, foundation,
or non-governmental organization (NGO). As a component of
the international Movement, it enjoys protection not afforded to
any charitable organization or NGO under the Geneva
Conventions. For instance, Articles 24 and 26 of the First Geneva
Convention vests National Society personnel with the same
status as the armed forces medical services in times of armed
conflict, subject to certain conditions. Also, only recognized
National Societies enjoy exclusive use of the protective red cross
emblem in conformity with the treaties.20 National Societies like
the PNRC are thus directly regulated by international
humanitarian law, unlike ordinary charitable organizations or
NGOs.
The PNRC also has rights and obligations under international
humanitarian law that ordinary charitable organizations and
NGOs do not have. Foremost of these rights is the privilege to
participate as a full member in the International Conference of
the Red Cross and Red Crescent, in which States also participate
as members pursuant to the Geneva Conventions.21 States
Parties and all components of the Movement attend the
conference to discuss humanitarian matters on equal footing.22
No other organization has this exceptional privilege in relation
to a State.
Significantly, both States Parties and the Movements
components adopt the Statutes of the Movement during the
conference held every four (4) years.23 The Statutes underscore
the special relationship that National Societies have in relation
to the State. Article 2 of the Statutes lays down reciprocal rights
and obligations between States Parties to the Geneva
Conventions and the National Societies, thus:
1. The States Parties to the Geneva Conventions cooperate with
the components of the Movement in accordance with these
Conventions, the present Statutes and the resolutions of the
International Conference.
2. Each State shall promote the establishment on its territory of
a National Society and encourage its development.
3. The States, in particular those which have recognized the
National Society constituted on their territory, support,
whenever possible, the work of the components of the
Movement. The same components, in their turn and in
accordance with their respective statutes, support as far as
possible humanitarian activities of the States.
4. The States shall at all times respect the adherence by all
components of the Movement to the Fundamental Principles.
5. The implementation of the present Statutes by the
components of the Movement shall not affect the sovereignty of
States, with due respect for the provisions of international
humanitarian law.
As can be seen, therefore, the PNRC is unlike ordinary charitable
organizations or NGOs in many respects due to the distinct
features it directly derives from international law. Although it is
a local creation, it was so organized as a national Red Cross
Society with direct reference to the Geneva Conventions. The
PNRC was explicitly "designated as the organization which is
authorized to act in matters of relief under said Convention."24
Consequently, its organizational status cannot be assessed
independently of the treaties that prompted its establishment.
The PNRC cannot also be regarded as a government corporation
or instrumentality. To begin with, it is not owned or controlled
by the government or part of the government machinery. The
conditions for its recognition as a National Society also militate
against its classification as a government entity. Article 4 (4) of
the Statutes requires a National Society to "(h)ave an
autonomous status which allows it to operate in conformity with
the Fundamental Principles of the Movement."
Thus, a National Society must maintain its impartiality,
neutrality, and independence. In its mission "to prevent and
alleviate human suffering wherever it may be found," it must
make "no discrimination as to nationality, race, religious beliefs,
class or political opinions." It must enjoy the confidence of all
and not take sides in hostilities or controversies of a political,
racial, religious or ideological nature.25 It cannot be seen,
therefore, as an instrument of the State or under governmental
control.
The Statutes require, however, that a National Society like the
PNRC "(b)e duly recognized by the legal government of its
country on the basis of the Geneva Conventions and of the
national legislation as a voluntary aid society, auxiliary to the
public authorities in the humanitarian field."26 This signifies a
partnership with government in implementing State obligations
based on international humanitarian law.27
The status of being an "auxiliary" of government in the
humanitarian field is a precondition to a National Societys
existence and recognition as a component of the Movement. In
its position paper, the Federation explained that the status of
auxiliary "means that it is at one and the same time a private
institution and a public service organization because the very
nature of its work implies cooperation with the authorities, a link
with the State." In other words, the status confers upon the
PNRC the duty to be the governments humanitarian partner
while, at the same time, remaining independent and free from
government intervention. As a recognized National Society, the
PNRC must be autonomous, even as it assists government in the
discharge of its humanitarian obligations.
Notably, the PNRC Charter is also reflective of the organizations
dual nature. It does not only vest the PNRC with corporate
powers, but imposes upon it duties related to the performance
of government functions. Under Section 1 of the charter, the
PNRC is "officially designated to assist the Republic of the
Philippines in discharging the obligations set forth in the Geneva
Conventions." As such, it is obligated "to provide volunteer aid
to the sick and wounded of the armed forces in time of war" and
"to perform all duties devolving upon the Corporation as a result
of the adherence of the Republic of the Philippines to the said
Convention."
Moreover, the charter clearly established the PNRC as a National
Red Cross Society pursuant to the treaties and Statutes of the
Movement. It was authorized "to act in such matters between
similar national societies of other governments and the
governments and people and the Armed Forces of the Republic
of the Philippines." The PNRC was to establish and maintain a
system of national and international relief and to apply the same
in meeting natural disasters, all in the spirit of the Geneva
Conventions.
In the pursuit of its humanitarian tasks, the PNRC was thus
granted the power of perpetual succession, the capacity to sue
and be sued, and the power to hold real and personal property.
It was authorized to adopt a seal, but was given exclusive use
of the Red Cross emblem and badge in accordance with the
treaties. It may likewise adopt by-laws and regulations and do
all acts necessary to carry its purposes into effect.
The PNRC is financed primarily by contributions obtained
through solicitation campaigns and private donations. And yet,
it is required to submit to the President of the Philippines an
annual report of its activities including its financial condition,
receipts and disbursements. It is allotted one annual national
lottery draw and is exempt from taxes, duties, and fees on
importations and purchases, as well as on donations for its
disaster relief work and other services.
Consequently, the PNRC cannot be classified as either a purely
private or government entity. It is a hybrid organization that
derives certain peculiarities from international humanitarian law.
For this reason, its organizational character does not fit the
parameters provided by either the Corporation Code or
Administrative Code. It is a sui generis entity that draws its
nature from the Geneva Conventions, the Statutes of the
Movement and the law creating it.
THIRD. The Constitution does not preclude the creation of
corporations that may neither be classified as private nor
governmental. Sec. 7, Article XIV of the 1935 Constitution,
which was carried over in subsequent versions of the
fundamental law, does not prohibit Congress from creating
other types of organizations that may not fall strictly within the
terms of what is deemed a private or government corporation.
The Constitution simply provides that Congress cannot create
private corporations, except by general law, unless such
corporations are owned or controlled by the government. It does
not forbid Congress from creating organizations that do not
belong to these two general types.
In Feliciano v. Commission on Audit,28 the Court explained that
the purpose of the ban against the creation of private
corporations by special charter is to prevent the grant to certain
individuals, families, or groups of special privileges that are
denied to other citizens. The creation of the PNRC does not
traverse the purpose of the prohibition, as Congress established
the PNRC to comply with State obligations under international
law. The PNRC Charter is simply a manifestation of the States
adherence to the Geneva Conventions. By enacting the PNRC
Charter, Congress merely implemented the will of the State to
join other nations of the world in the humanitarian cause.
The special status of the PNRC under international humanitarian
law justifies the special manner of its creation. The State itself
committed the PNRCs formation to the community of nations,
and no less than an act of Congress should be deemed sufficient
compliance with such an obligation. To require the PNRC to
incorporate under the general law is to disregard its unique
standing under international conventions. It also ignores the
very basic premise for the PNRCs creation.
FOURTH. The main issue in this case is whether or not the office
of PNRC Chairman is a government office or an office in a GOCC
for purposes of the prohibition in Section 13, Article VI of the
Constitution. The resolution of this question lies in the
determination of whether or not the PNRC is in fact a GOCC. As
explained earlier, the PNRC is not a GOCC, but a sui generis
entity that has no legal equivalent under any of our statutes.
Consequently, Senator Gordon did not forfeit his Senate seat
under the constitutional prohibition.
In view of the PNRCs sui generis character, the Court need not
even dwell on the issue of whether or not the PNRC Charter was
validly enacted. Congress is proscribed only from creating
private corporations which, as demonstrated, the PNRC is not.
The issue of constitutionality was not raised by any of the
original parties and could have been avoided in the first place.
Neither was the PNRC a party to the case, despite being the
entity whose creation was declared void under the main
decision.
Finally, the sui generis character of the PNRC does not
necessarily overturn the rulings of the Court in Camporedondo
and Baluyot. The PNRCs exceptional nature admits of the
conclusions reached in those cases that the PNRC is a GOCC for
the purpose of enforcement of labor laws and penal statutes.
The PNRCs sui generis character compels us to approach
controversies involving the PNRC on a case-to-case basis,
bearing in mind its distinct nature, purposes and special
functions. Rules that govern traditional private or public entities
may thus be adjusted in relation to the PNRC and in accordance
with the circumstances of each case.
ACCORDINGLY, I concur in the decision written for the majority
by Justice Teresita J. Leonardo-De Castro.
ROBERTO A. ABAD
Associate Justice

THIRD DIVISION
January 18, 2016
G.R. No. 199440
MARY LOU GETURBOS TORRES, Petitioner,
vs.
CORAZON ALMA G. DE LEON, in her capacity as Secretary
General of the Philippine National Red Cross and THE
BOARD OF GOVERNORS of the PHILIPPINE NATIONAL
RED CROSS, National Headquarters,Respondents.
DECISION
PERALTA, J.:
For this Court's consideration is the Petition for Review on
Certiorari,1 under Rule 45 of the Rules of Court, dated December
23, 2011 of petitioner Mary Lou Geturbos Torres seeking the
reversal of the Decision2 of the Court of Appeals (CA), dated
June 30, 2011 that affirmed Resolution No. 080691 dated April
2 l, 2008 and Resolution No. 081845 dated September 26, 2008,
both of the Civil Service Commission (CSC) that imposed upon
her the penalty of dismissal from service as Chapter
Administrator of the Philippine National Red Cross (PNRC),
General Santos City Chapter for grave misconduct.
The facts follow.
When petitioner was the Chapter Administrator of the PNRC,
General Santos City Chapter, the PNRC Internal Auditing Office
conducted an audit of the funds and accounts of the PNRC,
General Santos City Chapter for the period November 6, 2002
to March 14, 2006, and based on the audit report submitted to
respondent Corazon Alma G. De Leon (De Leon), petitioner
incurred a "technical shortage" in the amount of P4,306,574.23.
Hence, respondent De Leon in a Memorandum dated January 3,
2007, formally charged petitioner with Grave Misconduct for
violating PNRC Financial Policies on Oversubscription,
Remittances and Disbursement of Funds.
After the completion of the investigation of the case against
petitioner, respondent issued a Memorandum dated June 12,
2007 imposing upon petitioner the penalties of one month
suspension effective July 1-31, 2007 and transfer to the National
Headquarters effective August 1, 2007.
Petitioner filed a motion for reconsideration, but it was denied
in a Memorandum dated June 28, 2007.
Thereafter, petitioner filed a Notice of Appeal addressed to the
Board of Governors of the PNRC through respondent and
furnished a copy thereof to the CSC. Petitioner addressed her
appeal memorandum to the CSC and sent copies thereof to the
PNRC and the CSC. Respondent, in a memorandum dated
August 13, 2007, denied petitioner's appeal.
The CSC, on April 21, 2008, promulgated a Resolution
dismissing petitioner's appeal and imposing upon her the
penalty of dismissal from service. Petitioner filed a motion for
reconsideration with the CSC, but the same was denied.
Thus, petitioner filed a petition for review under Rule 43 with
the CA, and in its assailed Decision dated June 30, 2011, the CA
denied the said petition. Petitioner's motion for reconsideration
was likewise denied on October 6, 2011.
Hence, the present petition with the following grounds relied
upon:
GROUNDS FOR THE PETITION
1
THE COURT A QUO ERRED IN NOT FINDING THAT THE CIVIL
SERVICE COMMISSION (CSC) HAS NO APPELLATE
JURISDICTION OVER THE CASE;
2
THE COURT A QUO SERIOUSLY ERRED IN FAILING TO REALIZE
THAT RESPONDENT DE LEON HAS NO INTENTION TO DISMISS
PETITIONER FROM THE SERVICE AND IT WAS SERIOUS ERROR
ON THE PART OF THE CSC TO MODIFY THE SAME OR
TERMINATE PETITIONER FROM THE SERVICE WITHOUT ANY
AUTHORITY;
3
GRANTING ARGUENDO THAT THE CSC HAS CONSTITUTIONAL
CONTROL OVER THE PNRC, THE COURT A QUO ERRED IN NOT
FINDING THAT THE CSC DID NOT ACQUIRE OR HAD LOST
APPELLATE JURISDICTION OVER THE CASE; [and]
4
THE COURT A QUO ERRED IN NOT FINDING THAT THE
COMMENT (INITIATORY PLEADING) FILED BY THE KAPUNAN
LOTILLA FLORES GARCIA & CASTILLO LAW FIRM IN BEHALF
OF THE RESPONDENTS, DATED MARCH 31, 2009, IS NOT
VERIFIED NOR ACCOMPANIED BY A CERTIFICATION AGAINST
FORUM SHOPPING.
According to petitioner, this Court has decided that PNRC is not
a government-owned and controlled corporation (GOCC),
hence, the CSC has no jurisdiction or authority to review the
appeal that she herself filed. As such, she insists that the CSC
committed grave abuse of discretion in modifying the decision
of respondent De Leon. She further argues that the PNRC did
not give due course to her notice of appeal since petitioner's
counsel erroneously addressed and filed her notice of appeal to
the office of respondent PNRC NHQ BOGs through the office of
respondent De Leon instead of filing it directly with the CSC, and
respondent De Leon denied due course to the notice of appeal,
thus, according to petitioner, there was no more appeal to speak
of. Petitioner also claims that she voluntarily served the
sentence of one month suspension and transfer of assignment
before her counsel erroneously filed the notice of appeal, hence,
when the notice of appeal was filed, the decision of respondent
De Leon was already final. Finally, petitioner asserts that the CA
erred in not finding that the comment filed by the law firm in
behalf of the respondents, dated March 31, 2009, violated the
rules against forum shopping.
The petition lacks merit.
As ruled by this Court in Liban, et al. v. Gordon,3 the PNRC,
although not a GOCC, is sui generis in character, thus, requiring
this Court to approach controversies involving the PNRC on a
case-to-case basis. As discussed:
A closer look at the nature of the PNRC would show that there
is none like it not just in terms of structure, but also in terms of
history, public service and official status accorded to it by the
State and the international community. There is merit in PNRC's
contention that its structure is sui generis.
xxxx
National Societies such as the PNRC act as auxiliaries to the
public authorities of their own countries in the humanitarian field
and provide a range of services including disaster relief and
health and social programmes.
The International Federation of Red Cross (IFRC) and Red
Crescent Societies (RCS) Position Paper, submitted by the PNRC,
is instructive with regard to the elements of the specific nature
of the National Societies such as the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and
its sister Red Cross and Red Crescent Societies, have certain
specificities deriving from the 1949 Geneva Convention and the
Statutes of the International Red Cross and Red Crescent
Movement (the Movement). They are also guided by the seven
Fundamental Principles of the Red Cross and Red Crescent
Movement: Humanity, Impartiality, Neutrality, Independence,
Voluntary Service, Unity and Universality.
A National Society partakes of a sui generis character. It
is a protected component of the Red Cross movement under
Articles 24 and 26 of the First Geneva Convention, especially in
times of armed conflict. These provisions require that the staff
of a National Society shall be respected and protected in all
circumstances. Such protection is not ordinarily afforded by an
international treaty to ordinary private entities or even non-
governmental organizations (NGOs). This sui generis character
is also emphasized by the Fourth Geneva Convention which
holds that an Occupying Power cannot require any change in
the personnel or structure of a National Society. National
societies are therefore organizations that are directly regulated
by international humanitarian law, in contrast to other ordinary
private entities, including NGOs.
xxxx
In addition, National Societies are not only officially recognized
by their public authorities as voluntary aid societies, auxiliary to
the public authorities in the humanitarian field, but also benefit
from recognition at the International level. This is considered to
be an element distinguishing National Societies from other
organizations (mainly NGOs) and other forms of humanitarian
response.
x x x No other organization belongs to a world-wide Movement
in which all Societies have equal status and share equal
responsibilities and duties in helping each other. This is
considered to be the essence of the Fundamental Principle of
Universality.
Furthermore, the National Societies are considered to be
auxiliaries to the public authorities in the humanitarian field. x x
x.
The auxiliary status of [a] Red Cross Society means that it is at
one and the same time a private institution and a public service
organization because the very nature of its work implies
cooperation with the authorities, a link with the State. In
carrying out their major functions, Red Cross Societies give their
humanitarian support to official bodies, in general having larger
resources than the Societies, working towards comparable ends
in a given sector.
x x x No other organization has a duty to be its government's
humanitarian partner while remaining independent.
It is in recognition of this sui generis character of the PNRC that
R.A. No. 95 has remained valid and effective from the time of
its enactment in March 22, 1947 under the 1935 Constitution
and during the effectivity of the 1973 Constitution and the 1987
Constitution.
The PNRC Charter and its amendatory laws have not been
questioned or challenged on constitutional grounds, not even in
this case before the Court now.
xxxx
By requiring the PNRC to organize under the Corporation Code
just like any other private corporation, the Decision of July 15,
2009 lost sight of the PNRC's special status under international
humanitarian law and as an auxiliary of the State, designated to
assist it in discharging its obligations under the Geneva
Conventions. Although the PNRC is called to be independent
under its Fundamental Principles, it interprets such
independence as inclusive of its duty to be the government's
humanitarian partner. To be recognized in the International
Committee, the PNRC must have an autonomous status, and
carry out its humanitarian mission in a neutral and impartial
manner.
However, in accordance with the Fundamental Principle of
Voluntary Service of National Societies of the Movement, the
PNRC must be distinguished from private and profit-making
entities. It is the main characteristic of National Societies that
they "are not inspired by the desire for financial gain but by
individual commitment and devotion to a humanitarian purpose
freely chosen or accepted as part of the service that National
Societies through its volunteers and/or members render to the
Community."
The PNRC, as a National Society of the International Red Cross
and Red Crescent Movement, can neither "be classified as an
instrumentality of the State, so as not to lose its character of
neutrality" as well as its independence, nor strictly as a private
corporation since it is regulated by international humanitarian
law and is treated as an auxiliary of the State.
Based on the above, the sui generis status of the PNRC is now
sufficiently established. Although it is neither a subdivision,
agency, or instrumentality of the government, nor a
government-owned or -controlled corporation or a subsidiary
thereof, as succinctly explained in the Decision of July 15, 2009,
so much so that respondent, under the Decision, was correctly
allowed to hold his position as Chairman thereof concurrently
while he served as a Senator, such a conclusion does not ipso
facto imply that the PNRC is a "private corporation" within the
contemplation of the provision of the Constitution, that must be
organized under the Corporation Code. As correctly mentioned
by Justice Roberto A. Abad, the sui generis character of
PNRC requires us to approach controversies involving
the PNRC on a case-to-case basis.4
In this particular case, the CA did not err in ruling that the CSC
has jurisdiction over the PNRC because the issue at hand is the
enforcement of labor laws and penal statutes, thus, in this
particular matter, the PNRC can be treated as a GOCC, and as
such, it is within the ambit of Rule I, Section 1 of the
Implementing Rules of Republic Act 67135, stating that:
Section 1. These Rules shall cover all officials and employees in
the government, elective and appointive, permanent or
temporary, whether in the career or non-career service,
including military and police personnel, whether or not they
receive compensation, regardless of amount.
Thus, having jurisdiction over the PNRC, the CSC had authority
to modify the penalty and order the dismissal of petitioner from
the service. Under the Administrative Code of 1987,6 as well as
decisions7 of this Court, the CSC has appellate jurisdiction on
administrative disciplinary cases involving the imposition of a
penalty of suspension for more than thirty (30) days, or fine in
an amount exceeding thirty (30) days salary. The CA, therefore,
did not err when it agreed with the CSC that the latter had
appellate jurisdiction, thus:
The Court cites with approval the disquisition of the CSC in this
regard:
The Commission is fully aware that under the Civil Service Law
and rules and jurisprudence, it has appellate jurisdiction only on
administrative disciplinary cases involving the imposition of a
penalty of suspension for more than thirty (30) days, or fine in
an amount exceeding thirty (30) days' salary.
In the instant case, although the decision appealed from states
that Torres was imposed the penalty of "one month" suspension
from the service, it is unequivocally spelled out therein that the
period of her suspension is from July 1-31, 2007." This
specifically written period unmistakably indicates that Torres
was actually imposed the penalty of thirty-one (31) days and
not merely thirty (30) days or one (1) month.1wphi1
Petitioner submits that the actual duration of the period of her
suspension was only thirty (30) days since July 1, 2007 was a
legal holiday, it being a Sunday. This submission, however, is
flawed considering that she was imposed the penalty of "One
Month Suspension effective July 1-31, 2007" or for a period of
thirty-one (31) days.
Even granting that petitioner was imposed the penalty of
suspension for thirty (30) days only, it should be noted that she
was also imposed another penalty of "Transfer to the NHQ
effective August 01, 2007." Hence, the CSC would still have
appellate jurisdiction.8
Neither can it be considered that the CSC had lost its appellate
jurisdiction because, as claimed by petitioner, she voluntarily
served the sentence of one month suspension and transfer of
assignment before her counsel filed the notice of appeal, hence,
the decision of the PNRC was already final even before a notice
of appeal was filed with the CSC. The CA was correct in finding
that petitioner's appeal was properly and timely made with the
CSC under the Uniform Rules on Administrative Cases in the Civil
Service (URACCS). It ruled:
As enunciated in the cases cited by petitioner, a decision
becomes final even before the lapse of the fifteen-day period to
appeal when the defendant voluntarily submits to the execution
of the sentence. In the present case, however, it cannot be
said that she voluntarily served her penalty in view of
the fact that she appealed therefrom. Moreover, the
service of the penalty is pursuant to Section 47 of the
Uniform Rules on Administrative Cases in the Civil
Service (URACCS) which reads:
Section 47. Effect of filing. - An appeal shall not stop the decision
from being executory, and in case the penalty is suspension or
removal, the respondent shall be considered as having been
under preventive suspension during the pendency of the appeal,
in the event he wins the appeal.
Petitioner's claim that the Notice of Appeal and the Appeal
Memorandum were filed with the PNRC and not with the CSC
deserves scant consideration. Section 43 of the URACCS
pertinently provides:
Section 43. Filing of Appeals. -
xxx
A notice of appeal including the appeal memorandum shall be
filed with the appellate authority, copy furnished the disciplining
office. The latter shall submit the records of the case, which shall
be systematically and chronologically arranged, paged and
securely bound to prevent loss, with its comment, within fifteen
(15) days, to the appellate authority.
An examination of the Notice of Appeal shows that the same
was addressed to the PNRC and copy furnished the CSC. On the
other hand, an examination of the Appeal Memorandum shows
that the same was addressed to the CSC and copies thereof
were sent to both the PNRC and the CSC. It is thus clear that a
copy of the Notice of Appeal was furnished the CSC and the
Appeal Memorandum was filed with it. While the rules required
that the notice of appeal including the appeal memorandum
shall be filed with the CSC, it is undeniable that furnishing a copy
of the Notice of Appeal with the CSC and filing with it the Appeal
Memorandum substantially complied with the rule. The
important thing is that the Appeal Memorandum was
clearly addressed to the CSC.9
Anent the issue that respondents' Comment filed before the CA
lacks verification and a certificate of non-forum shopping, such
is inconsequential because a comment is not an initiatory
pleading but a responsive pleading. [T]he required certification
against forum shopping is intended to cover an "initiatory
pleading," meaning an "incipient application of a party asserting
a claim for relief."10 A comment, required by an appellate
tribunal, to a petition filed with it is not a pleading but merely
an expression of the views and observations of the respondent
for the purpose of giving the court sufficient information as to
whether the petition is legally proper as a remedy to the acts
complained of.11
Based on the above disquisitions, all other issues presented by
petitioner are rendered immaterial.
WHEREFORE, the Petition for Review on Certiorari under Rule
45 of the Rules of Court dated December 23, 2011 of petitioner
Mary Lou Geturbos Torres is DENIED for lack of merit. The
Decision of the Court of Appeals, dated June 30, 2011, is
therefore AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairman
JOSE PORTUGAL PEREZ BIENVENIDO L. REYES
Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions
in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P.A. SERENO
Chief Justice
CERTIFIED TRUE COPY
WILFREDO V. LAPITAN
Division Clerk of Court
Third Division
February 17, 2016