Group 7 - Celo, Julie Ann

David, Abner
Eugenio, Katrina
Galicinao, James Nicolo

Discretion given to appointing authority whom to appoint; Recommendation to the

President from a Cabinet member whom to appoint is merely an endorsement –
not binding to the President.

Bermudez vs. Executive Secretary Torres, 311 SCRA 733 {G.R. No. 131429]
(Aug. 4, 1999
Facts:

The position of the Provincial Prosecutor of Tarlac became vacant. Petitioner

Bermudez, was recommended by the Secretary of Justice to be the Provincial
Prosecutor of Tarlac. . On the other hand, Quiaoit was recommended by
Representative Yap. Quiaoit was appointed by the President, took his oath of
office, assumed office and performed the functions of the Provincial Prosecutor.
Bermudez challenged the appointment of Quiaoit primarily on the ground that his
appointment lacks the recommendation of the Secretary of Justice as prescribed
under the Revised Administrative Code. Bermudez contends that the
recommendation of the Secretary of Justice is essential or mandatory for the
appointing power to consider in making the appointment.

The disputed provision of the Revised Administrative Code reads:

Book IV, Title III, Chapter II, Section 9:

“All provincial and city prosecutors and their assistants shall be appointed by the
President upon the recommendation of the Secretary.”

Issue: WON the recommendation of the DOJ Secretary is absolutely essential to

the appointment of a Provincial Prosecutor. If it was, then Bermudez should have
been appointed and not Quiaoit.

Ruling:

No. The phrase "upon recommendation of the Secretary," cited in the Revised
Administrative Code, should be interpreted, as it is normally so understood, to be a
mere advise, exhortation or endorsement, which is essentially persuasive in
character and not binding or obligatory upon the party to whom it is made. The
recommendation is here nothing really more than advisory in nature. The
President, being the head of the Executive Department, could very well disregard
or do away with the action of the departments, bureaus or offices even in the
exercise of discretionary authority, and in so opting, he cannot be said as having
acted beyond the scope of his authority.

Discretion given to Appointing Power on whom to Appoint

Indeed, it may rightly be said that the right of choice is the heart of the power to
appoint. In the exercise of the power of appointment, discretion is an integral part
thereof.
When the Constitution or the law clothes the President with the power to appoint a
subordinate officer, such conferment must be understood as necessarily carrying
with it an ample discretion of whom to appoint.

The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding
for himself who is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the appointing power . (Cited
in Pamantasan ng Lungsod ng Maynila vs. IAC and Flores vs. Drilon & Gordon)