sept 5 consti

8/11/2019 Sept 5 Consti

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CONSTI

SEPT 5,2015

VOL. 194, FEBRUARY 22, 1991

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Civil Liberties Union vs. Executive Secretary

G.R. No. 83896. Frbeuary 22, 1991.*

CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815. February 22, 1991.*ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary

of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of

Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE

V. JAYME, as Secretary of Finance; SEDFREY ORDONEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary o

Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of Nationa

Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways;

ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry

JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES

as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA

MONSOD, as Head of the National Economic Development Authority, respondents.

Constitutional Law; Statutory Construction; Executive Order No. 284; The Court in construing a constitution should bea

in mind the object sought to be accomplished by its adoption and the evils if any sought to be prevented or remedied; A

doubtful provision will be examined in the light of the history of the times and the condition and circumstances under

which the Constitution was formed.A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the

object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtfu

provision will be examined in

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* EN BANC.

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the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The

object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the

purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that

reason and calculated to effect that purpose.

Same; Same; Same; Same; The intent of the framers of the Constitution was to impose a stricter prohibition on the

President and his official family in so far as holding other offices or employment in the government or elsewhere is

concerned.Evidently, from this move as well as in the different phraseologies of the constitutional provisions in

question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his

official family in so far as holding other offices or employment in the government or elsewhere is concerned.Same; Same; Same; Same; Such intent is underscored by a comparison of Section 13, Article VII when other provisions o

the Constitution on the disqualifications of certain public officials or employees from holding other offices o

employment.Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions o

the Constitution on the disqualifications of certain public officials or employees from holding other offices o

employment. Under Section 13, Article VI, (N)o Senator or Member of the House of Representatives may hold any

other office or employment in the Government . . .. Under Section 5(4), Article XVI, (N)omember of the armed forces

in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including

government-owned or controlled corporations or any of their subsidiaries. Even Section 7 (2), Article IX-B, relied upon

by respondents provides (U)nless otherwise allowed by law or by the primary functions of his position, no appointive

official shall hold any other office or employment in the Government.


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Same; Same; Same; Same; The prohibition imposed on the President and his official family is therefore all-embracing

and covers both public and private office or employment.It is quite notable that in all these provisions on

disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the

government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording

of Section 13, Article VII which states that (T)he President, Vice-President, the Members

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319Civil Liberties Union vs. Executive Secretary

of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any othe

office or employment during their tenure. In the latter provision, the disqualification is absolute, not being qualified by

the phrase in the Government. The prohibition imposed on the President and his official family is therefore all

embracing and covers both public and private office or employment.

Same; Same; Same; Same; Same; The all-embracing prohibition imposed on the President and his official family are

proof of the intent of the 1987 Constitution to treat them as a class by itself and to impose upon said class stricte

prohibitions.Going further into Section 13, Article VII, the second sentence provides: They shall not, during said

tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in an

contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency o

instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. These sweeping

all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed

on other public officials or employees such as the Members of Congress, members of the civil service in general and

members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his officia

family as a class by itself and to impose upon said class stricter prohibitions.

Same; Same; Same; Same; While all other appointive officials in the civil service are allowed to hold other office o

employment in the government during their tenure when such is allowed by law or by the primary functions of their

positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the

Constitution itself.Thus, while all other appointive officials in the civil service are allowed to hold other office o

employment in the government during their tenure when such is allowed by law or by the primary functions of their

positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the

Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective

and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable onlyto the President, the Vice-President, Members of the Cabinet, their deputies and assistants.

Same; Same; Same; Same; Executive Order No. 284 is unconstitutional as it allows Cabinet members, undersecretaries

or assistant

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secretaries to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article

VII of the 1987 Constitution prohibiting them from doing so.In the light of the construction given to Section 13, Article

VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 isunconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistan

secretaries may hold in addition to their primary position to not more than two (2) positions in the government and

government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direc

contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so

unless otherwise provided in the 1987 Constitution itself.

Same; Same; Same; Same; Same; De facto officers; During their tenure in the questioned position, respondents may be

considered de facto officers and as such entitled to emoluments for actual services rendered.During their tenure in

the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments fo

actual services rendered. It has been held that in cases where there is no de jure, officer, a de facto officer, who, in

good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the


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emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached

to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should

benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. Any per

diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the

questioned positions may therefore be retained by them.

PETITIONS to review the order of the Executive Secretary.

The facts are stated in the opinion of the Court.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:

These two (2) petitions were consolidated per resolution dated

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August 9, 19881 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order

No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Orde

are:

SECTION 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary

or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position

hold not more than two positions in the government and government corporations and receive the corresponding

compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards,

councils or bodies of which the President is the Chairman.

SECTION 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the

Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the

excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than

two positions other than bis primary position.

SECTION 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at

least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretaryor assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretarie

and assistant secretaries to hold other government offices or positions in addition to their primary positions, albei

subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution,2 which

provides as follows:

Sec. 13.The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless

otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during

said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in

any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or in-

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1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No. 83896.

2 Italics supplied.

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strumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly

avoid conflict of interest in the conduct of their office.


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It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along

with the other public officials enumerated in the list attached to the petitions as Annex C in G.R. No. 83815 3 and as

Annex B in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a

declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines furthe

seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary

restraining order directing public respondents therein to cease and desist from holding, in addition to their primary

positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any

salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and

compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may havereceived from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted absolute and

self-executing provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordonez, construing Section 13

Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5

declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office

including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in

the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8

paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions

and that on the basis of

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3 pp. 29-30, Rollo.

4 pp. 10-21, Rollo.

5 Annex A, Petition, G.R. No. 83815, pp. 21-24, Rollo.

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this Opinion, the President of the Philippines, on July 25, 1987, or two (2) days before Congress convened on July 27,

1987, promulgated Executive Order No. 284.6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they

allegedly lumped together Section 13, Article VII and the general provision in another article, Section 7, par. (2), ArticleIX-B. This strained linkage between the two provisions, each addressed to a distinct and separate group of public

officersone, the President and her official family, and the other, public servants in generalallegedly abolished the

clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs

for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the

leaders of government expected to lead by example,7 Article IX-B, Section 7, par. (2)8 provides:

Sec. 7. xxx xxx xxx

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any othe

office or employment in the government or any subdivision, agency or instrumentality thereof, including government

owned or controlled corporations or their subsidiaries.

The Solicitor General counters that Department of Justice (DOJ) Opinion No. 73, series of 1987, as further elucidated and

clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the first official con-_______________

6 Thereby, petitioner alleges, eliciting adverse published commentaries from CONCOM Commissioners Fr. Joaquin G

Bernas, S. J. and Regalado E. Maambong, Congressman Rodolfo Albano of Isabela, and retired Supreme Court Justice

Felix Q. Antonio, Annexes D,E and F, Petition, G.R. No. 83815, pp. 40-64, Rollo. CONCOM Vice-President Ambrosio

B. Padilla, in a published article cited in the annexes, also commented on EO 284.

7 p. 11, Rollo in G.R. No. 83815.

8 Italics supplied.

9 Annex I, Comment, G.R. No.83896, pp. 62-67, Rollo.

10 Annex 2, Ibid., pp. 68-71, Rollo.


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struction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article IX-B of

the Constitution, involving the same subject of appointments or designations of an appointive executive official to

positions other than his primary position, is reasonably valid and constitutionally firm, and that Executive Order No

284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting thatDOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O.

No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed

by the primary functions of the public official, but only to the holding of multiple positions which are not related to or

necessarily included in the position of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission

that it adds exceptions to Section 13, Article VII other than those provided in the (Constitution. According to petitioners

by virtue of the phrase unless otherwise provided in this Constitution, the only exceptions against holding any othe

office or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be

appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an

ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article IX-B on the Civil Service

Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and

cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of th

Cabinet and their deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and thei

deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The

disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners

insist that

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Civil Liberties Union vs. Executive Secretarybecause of the phrase unless otherwise provided in this Constitution used in Section 13 of Article VII, the exception

must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a Membe

of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex

officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,

maintain that the phrase unless otherwise provided in the Constitution in Section 13, Article VII makes reference to

Section 7, par. (2), Article IX-B insofar as the appointive officials mentioned therein are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as

Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive official

in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: Unless otherwise

allowed by law or by the primary functions of his position, no appointive official shall hold any other office or

employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned ocontrolled corporation or their subsidiaries.

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, i

has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by

its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the ligh

of the history of the times, and the condition and circumstances under which the Constitution was framed. The object i

to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose

sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and

calculated to effect that purpose.11

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Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution

on the disqualifications of certain public officials or employees

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13 pp. 11-14.

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SUPREME COURT REPORTS ANNOTATEDCivil Liberties Union vs. Executive Secretary

from holding other offices or employment. Under Section 13, Article VI, (N)o Senator or Member of the House of

Representatives may hold any other office or employment in the Government . . .. Under Section 5(4), Article XVI, (N)o

member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in

the Government, including government-owned or controlled corporations or any of their subsidiaries. Even Section 7

(2), Article IX-B, relied upon by respondents provides (U)nless otherwise allowed by law or by the primary functions of

his position, no appointive official shall hold any other office or employment in the Government.

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition

pertains to an office or employment in the government and government-owned or controlled corporations or thei

subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that (T)he President, Vice

President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in thi

Constitution, hold any other office or employment during their tenure. In the latter provision, the disqualification is

absolute, not being qualified by the phrase in the Government. The prohibition imposed on the President and his

official family is therefore all-embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: They shall not, during said tenure, directly o

indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or

in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof

including government-owned or controlled corporations or their subsidiaries. These sweeping, all-embracing

prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on othe

public officials or employees such as the Members of Congress, members of the civil service in general and members o

the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class

by itself and to impose upon said class stricter prohibitions.

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Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also

succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floo

deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the

General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, We

actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and

therefore, more checks and restraints on them are called for because there is more possibility of abuse in their case.14

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in thegovernment during their tenure when such is allowed by law or by the primary functions of their positions, members o

the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In othe

words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public

officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the

Vice-President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase unless otherwise provided in this Constitution in Section 13, Article VI

cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To

construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest

intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President

Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the


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government during their tenure. Respon-dents interpretation that Section 13 of Article VII admits of the exceptions

found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the

Constitution as to when the high-ranking officials of the Execu-

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14 Record of the 1986 Constitutional Commission, Vol. I, p. 553.

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tive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank

immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the

government during their tenure.

Moreover, respondents reading of the provisions in question would render certain parts of the Constitution inoperative

This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold othe

office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1

of Article IX-B is absolutely ineligible for appointment or designation in any capacity to any public office or position

during his tenure. Surely, to say that the phrase unless otherwise provided in this Constitution found in Section 13

Article VII has reference to Section 7, par. (1) of Article IX-B would render meaningless the specific provisions of the

Constitution authorizing the Vice-President to become a member of the Cabinet,15 and to act as President without

relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify.16 Such absurd

consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1

of Article IX-B providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto

In the same manner must Section 7, par. (2) of Article IX-B be construed vis-a-vis Section 13, Article VII.

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated

from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be

brought into view and to be so interpreted as to effectuate the great purposes of the instrument.17 Sections bearing on

a particular subject should be considered and interpreted together as to effectuate the whole purpose of the

Constitution18 and one section is not to be

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15 Sec. 3, Ibid.

16 Sec. 7, Article VII.

17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed 345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241

P. 879.

18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith,

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allowed to defeat another, if by any reasonable construction, the two can be made to stand together.19In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will rende

every word operative, rather than one which may make the words idle and nugatory.20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President

Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices o

employment in the government during their tenure, the exception to this prohibition must be read with equal severity

On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a

positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily

wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and

unequivocal negation.21 The phrase unless otherwise provided in this Constitution must be given a litera

interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-Presi-dent being


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appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances

provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the

Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution

must not, however, be construed as applying to posts occupied by the Executive officials specified therein withou

additional compensation in an ex-officio capacity as provided by law and as

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308 Ky 73, 212 SW 2d 521.19 People vs. Wright, 6 Col. 92.

20 Thomas M. Colley, A Treatise on the Constitutional Limitations, Vol. I, p. 128, citing Attorney-General vs. Detroit and

Erin Plank Road Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Township vs. Dubuque, 7 Iowa 262.

21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22 Tex. App. 396, 3 S.W. 233.

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required22 by the primary functions of said officials office. The reason is that these posts do no comprise any other

office within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and

functions on said officials.23 To characterize these posts otherwise would lead to absurd consequences, among which

are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No

115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of Nationa

Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to

exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be

prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth

Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his

department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these

agencies. The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their respective

undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking

employees in providing policy direction in the areas of money, banking and credit.25Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a

continuously operative charter of government, is not to be interpreted as demanding the impossible or the

impracticable; and unreasonable or absurd consequences, if possible, should

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22 As opposed to the term allowed used in Section 7, par. (2), Article IX-B of the Constitution, which is permissive

Required suggests an imposition, and therefore, obligatory in nature.

23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Green-ville Sewer District, 173 A.L.R. 407.

24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117.

25 Sec. 20, Art. XII, 1987 Constitution.

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be avoided.26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held withou

additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the

concerned officials office. The term ex-officio means from office; by virtue of office. It refers to an authority derived

from official character merely, not expressly conferred upon the individual character, but rather annexed to the officia

position. Ex-officio likewise denotes an act done in an official character, or as a consequence of office, and without any


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other appointment or authority than that conferred by the office.27 An ex-officio member of a board is one who is a

member by virtue of his title to a certain office, and without further warrant or appointment.28 To illustrate, by express

provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the

Philippine Ports Authority,29 and the Light Rail Transit Authority.30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Contro

and Inspection Board,31 thus: An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the

chairman and members of the Board to qualify they need only be designated by the respective department heads. With

the exception of the representative from the private sector, they sit ex-officio. In order to be designated they mus

already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previousappointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The

same is true with respect to the represen-

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26 Hirabayashi vs. United States, 320 U.S. 81, 87 L.Ed. 1774, 63 S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of

Wage and Hour Div., 312 U.S. 126,85 L. Ed. 624,61 S. Ct. 524; Gage vs. Jordan, 23 Cal 2d 794, 174 P 2d, 287 cited in 16

Am Jur 2d, pp. 100, 464.

27 Blacks Law Dictionary, p. 516; 15A Words and Phrases, p. 392.

28 15A Words and Phrases, p. 392.

29 Sec. 7, E.O. 778.

30 Sec. 1, E.O. 210.

31 21 SCRA 336 (1967).

334

334



tatives from the order offices. No new appointments are neces sary. This is as it should be, because the representative

so designated merely perform duties in the Board in addition to those already performed under their origina

appointments.32

The term primary used to describe functions refers to the order of importance and thus means chief or principa

function. The term is not restricted to the singular but may refer to the plural.33 The additional duties must not only be

closely related to, but must be required by the officials primary functions. Examples of designations to positions byvirtue of ones primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board,

and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority34 and

the Civil Aeronautics Board. If the functions required to be performed are merely incidental, remotely related

inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional function

would fall under the purview of any other office prohibited by the Constitution. An example would be the Pres

Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule

applies to such positions which confer on the cabinet official management functions and/or monetary compensation

such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their

subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies o

assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of theirspecial knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many

jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among

the different offices in the Execu-

_______________

32 Italics supplied.

33 33A Words and Phrases, p. 210, citing Collector of Revenue vs. Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145.

34 Sec. 7, P.D. No. 474.

335


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335


tive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and

general welfare and delivering basic services to the people. It is consistent with the power vested on the President and

his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure

that the laws are faithfully executed.35 Without these additional duties and functions being assigned to the Presiden

and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex

officio capacity as provided by law and as required by their primary functions, they would be deprived of the means focontrol and supervision, thereby resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition

embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the

primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law,

without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the officia

concerned has no right to receive additional compensation for his services in the said position. The reason is that these

services are already paid for and covered by the compensation attached to his principal office. It should be obvious that

if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actuall

and in legal contemplation performing the primary function of his principal office in defining policy in monetary and

banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled

to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some

other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the

Constitution.

It is interesting to note that during the floor deliberations on

_______________

35 Section 17, Article VII.

336

336


Civil Liberties Union vs. Executive Secretarythe proposal of Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of

the General Provisions, the exception unless required by the functions of his position,36 express reference to certain

high-ranking appointive public officials like members of the Cabinet were made.37 Responding to a query o

Commissioner Bias Ople, Commissioner Monsod pointed out that there are instances when although not required by

current law, membership of certain high-ranking executive officials in other offices and corporations is necessary by

reason of said officials primary functions. The example given by Commissioner Monsod was the Minister of Trade and

Industry.38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additiona

functions and duties flowing from the primary functions of the official may be imposed upon him without offending the

constitutional prohibition; under consideration, it cannot, however, be taken as authority for saying that this exception

is by virtue of Section 7, par. (2) of Article IX-B. This colloquy between the two Commissioners took place in the plenarysession of September 27,1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the

proposed article on General Provisions.39 At that time, the article on the Civil Service Commission had been approved

on third reading on July 22, 1986,40 while the article on the Executive Department, containing the more specific

prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986.41 It was only after the

draft Constitution had undergone reformatting and styling by the Committee on Style that said Section 3 of the

General Provisions became Section 7, par. (2) of Article IX-B

_______________

36 The phrase that appears in the Constitution is not Unless required by the primary functions but Unless otherwise

allowed by law or by the primary functions . . .


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37 Record of the 1986 Constitutional Commission, Vol. V, pp 165-166.

38 Italics supplied, Ibid., p. 165.

39 Ibid., Vol. V., pp. 80-81.

40 Ibid., Vol. II, p. 94.

41 Ibid., Vol. III, p. 710.

337


337Civil Liberties Union vs. Executive Secretary

and reworded Unless otherwise allowed by law or by the primary functions of his position. . .

What was clearly being discussed then were general principles which would serve as constitutional guidelines in the

absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion

was the adoption of the qualified and delimited phrase primary functions as the basis of an exception to the genera

rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition

in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in

then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service

Commission.

That this exception would in the final analysis apply also to the President and his official family is by reason of the lega

principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX

B. At any rate, we have made it clear that only the additional functions and duties required, as opposed to allowed,

by the primary functions may be considered as not constituting any other office.

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in

order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when othe

guides fail42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debate

in the constitutional convention are of value as showing the views of the individual members, and as indicating the

reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the

mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer

to construe the constitution from what appears upon its face.43 The proper interpretation therefore depends more on

how it was understood by the people

_______________

42 16 Corpus Juris Secundum, 2. 31, p. 105.

43 Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220.

338

338


Civil Liberties Union us. Executive Secretary

adopting it than in the framerss understanding thereof.44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President

Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices o

employment in the government, except in those cases specified in the Constitution itself and as above clarified withrespect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by

the primary functions of their office, the citation of Cabinet members (then called Minis-ters) as examples during the

debate and deliberation on the general rule laid down for all appointive officials should be considered as mere persona

opinions which cannot override the constitutions manifest intent and the people understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987

Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number o

positions that Cabinet members, undersecretaries or assistant sec-retaries may hold in addition to their primary position

to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually

allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article

VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.


13/88


14/88

Paras, J., I concur because cabinet members like the members of the Supreme Court are not supermen.

Sarmiento and Grio-Aquino, JJ., No part.

Petitions granted.

Note.View that the language of the Constitution should be read in a sense most obvious to the common

understanding at the time of its adoption (People vs. Muoz, 170 SCRA 107).

o0o

_______________

47 Patterson vs. Benson, 112 Pac. 801, 32 L.R.A. (NS) 949. [Civil Liberties Union vs. Executive Secretary, 194 SCRA

317(1991)]

VOL. 156, DECEMBER 17, 1987

549

Sarmiento III vs. Mison

No. L-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.Statutory Construction; Constitution; Intent of the framers of the constitution and of the people adopting it must be

given effect.The fundamental principle of constitutional construction is to give ef fect to the intent of the framers of

the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and

expressed in the constitutional provisions themselves. The Court will thus construe the applicable constitutiona

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.

Same; Same; Same; 1935 Constitution requires confirmation by the Commission on Appointments of all presidentia

appointments, under the 1973 constitution the president has absolute power of appointment while under the 1987

Constitution, only the first group of appointments requires confirmation of the Commission on Appointments.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-tradingand similar malpractices. On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it

was molded and re-molded by successive amendments, placed the absolute power of appointment in the President wit

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

_______________

* EN BANC.

550

550



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.

Same; Same; Same; Same; Under the 1987 Constitution, the clear and expressed intent of its framers is to exclude

presidential appointments from confirmation on the Commission on Appointments except appointments to offices

mentioned in the first sentence of Sec. 16 Article VII.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


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Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" afte

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.

Same; Same; Same; Same; Same; The word "alone" in the third sentence of Sec. 16 Art. VII of the 1987 Constitution is a

redundancy in the light of the second sentence of 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" inthe 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.

Commission on Appointments; Confirmation of the appointment of Commissioners of the Bureau of Customs by the

Commission on Appointments not required.Coming now to the immediate question before the Court, it is evident tha

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

551


551


Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads o

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.

Same; Same; Appointment of respondent Savlador Mison as Commissioner of the Bureau of Customs without submitting

his nomination to the Commission on Appointments is within the constitutional authority of the President of the

Philippines.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 andfunctions of the of fice and to receive all the salaries and emoluments pertaining thereto.

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 o

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 o

Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison'

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 responden

Mison's appointment without the conf irmation 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

552

552



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.


16/88

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 lik

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 lawand of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the

constitutional provisions themselves."

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 ran

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

_______________

1 66 Phil. 259, at 264.

553


553


whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lowe

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 o

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 officerswhom 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;

_______________

2 The "other officers" whose appointments are vested in the President in the 1987 Constitution are:

1. Regular members of the Judicial and Bar Council (ART. VIII, Sec. 8(2);

2. Chairman and Commissioners of the Civil Service Commission (ART. IX-B, Sec. 1(2);3. Chairman and Commissioners of the Commission on Elections (ART. IX-C, Sec. 1(2);

4. Chairman and Commissioners of the Commission on Audit (ART. IX-D, Sec. 1(2): and,

5. Members of the regional consultative commission (ART. X, Sec. 18)

3 When Congress creates inferior offices and omits to provide for appointments to them, or provides in an

unconstitutional way for such appointment, the officers are within the meaning of the clause "officers of the

Government whose appointments are not otherwise provided for by law" and the power to appoint such officers

devolves on the President. (USC, Const., Par. II, p. 529, citing Op., Atty. Gen. 213.)

554

554


17/88



Fourth, officers lower in rank4 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 notenumerated, 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 o

constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutiona

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

_______________

4 The 1935 Constitution says "inferior officers" while the 1987 Constitution states "officers lower in rank."

5 Example: Sen. Raul S. Manglapus was first nominated by the President for the position of Secretary of the Departmen

of Foreign Affairs (an executive department). After his nomination was confirmed by the Commission on Appointments

the President appointed him Secretary of Foreign Affairs.

555


555


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

x x x x x

"(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 have the power to make appointments during the recess of the Congress, but such

appointments shall be effective only until disapproval by the Commission on Appointments or until the next

adjournment of the Congress.

x x x x x"(7) x x x, and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers

and consuls x x x."

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 thei

respective offices."

Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commis-


18/88

_______________

6 66 Phil. 259, at 265.

556

556



sion on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission onAppointments, 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 difficul

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,

_______________

7 Pp. 384-385, Vol. II, RECORD OF THE CONSTITUTIONAL COMMISSION OF 1986.557


557


Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidentia

appointments more limited than that held by the Commission in the 1935 Constitution, Thus

"Mr. Rama: x x x May I ask that Commissioner Monsod be recogized.

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.x x x x x x x x x

On Section 16, / 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.

x x x x x x x x"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

sentence9 of the section from the same requirement. The records of the deliberations of the Contitutional Commissio

show the following:

"MR. ROMULO: I ask that Commissioner Foz be recognized.


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THE PRESIDENT: Commissioner Foz is recognized.

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words 'and

bureaus,' and on line 28 of the same page, to change the phrase 'colonel or naval captain' to MAJOR GENERAL OR REAR

ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is

_______________

8 Pp. 433-435, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL COMMISSION.

9 The second sentence of Sec. 16, ART. VII of the 1987 Constitution refers to what this Decision calls the second and

third groups of officers appointed by the President.558

558



to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO

APPOINT, et cetera.

MR. REGALADO. May we have the amendments one by one. The first proposed amendment is to delete the words 'and

bureaus' on line 26,

MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a

deletion?

MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require furthe

confirmation of presidential appointment of heads of bureaus would subject them to political influence.

MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished

from merely staff directors, because the regional directors have quite a plenitude of powers within the regions a

distinguished from staff directors who only stay in the office.

MR. FOZ: Yes, but the regional directors are under the supervision of the staff bureau directors.

x x x x x x x x x

MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete

'and bureaus' on Section 16. Who will then appoint the bureau directors if it is not the President?

MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation

by the Commission on Appointments.MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro?

MR. FOZ: Yes.

MR. MAAMBONG: Thank you.

THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

x x x x x x x x x

MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote.

MR. DE CASTRO: Thank you.

559


559Sarmiento III vs. Mison

MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus

on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on

Appointment.

Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on

Appointments, shall appoint the heads of the executive departments, ambassadors. . , .'

THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears

none; the amendments is approved.

x x x x x x x x x

MR. ROMULO: Madam President.


20/88


21/88

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'

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 off icers 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

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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 o

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 isinevitable, 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 orde

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, thiimplies 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-

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ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation

by the Commission on Appointments.


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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 i

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 10, Article VII thereof

"x x x ; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or inthe heads of departments." [Emphasis supplied].

The above provision in the 1935 Constitution appears immediately after the provision which makes practically al

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; x x x"

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 in-

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ferior officers (equivalent to "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 ves

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 inthe 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 department

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 o

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 theCommission 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 Con-

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Sarmiento III vs, Mison

stitution, on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the

consent (confirmation) of the Commission on Appointments.


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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 bil

mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the direct appointmen

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 wouldenable 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 ran

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, o

in the heads of the departments, agencies, commissions or boards.

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"The President shall have the power to make appointments during the recess of the Congress, whether voluntary o

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 appointmentprocess has been deliberately decreased in the 1987 Constituti

sept 5 consti

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