SUNDAY, JUNE 28, 2009

Aytona vs Castillo Case Digest

FACTS:

On December 29, 1961, Carlos P. Garcia, who was still President that time, made
last minute appointments while the Commission on Appointments was not in
session. Said last minute appointment included Dominador R. Aytona, who was
appointed as ad interim Governor of Central Bank. The latter took oath on the same
day.

At noon on December 30, 1961, President-elect Diosdado Macapagal assumed

office. He issued Administrative Order No. 2 on December 31, 1961 recalling,
withdrawing and canceling all ad interim appointments made by President Garcia
after December 13, 1961, which was the date when Macapagal was proclaimed
President by the Congress. He then appointed Andres V. Castillo as ad interim
Governor of the Central Bank and the latter qualified immediately.

On January 2, 1962, both exercised the powers of their office. However, Aytona was
prevented from holding office the following day and thus instituted a quo warranto
proceeding, challenging Castillos right to exercise the powers of the Governor of
the Central Bank. Aytona claims that he was validly appointed and had qualified for
the post, therefore making Castillos appointment void. Castillo then contended that
Aytonas appointment had already been revoked by Administrative Order No. 2
issued by President Macapagal.

ISSUE:

Whether President Diosdado Macapagal had power to issue the order of cancellation
of the ad interim appointments made by President Carlos P. Garcia even after the
appointees had already qualified.

RULING:

Upon the ground of separation of powers, the court resolved that it must decline
and refuse jurisdiction in disregarding the Presidential Administrative Order No. 2,
canceling such midnight or last-minute appointments.

Case dismissed.

by:

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AYTONA vs CASTILLO
31
10
2011
1 Vote

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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-19313

January 19, 1962

DOMINADOR R. AYTONA, petitioner,

vs.
ANDRES V. CASTILLO, ET AL., respondents.

R E S O L U T I O N.

BENGZON, C.J.:

Without prejudice to the subsequent promulgation of more extended opinion, the

Court adopted today, the following resolutions: .

On December 29, 1961, then President Carlos P. Garcia appointed Dominador R.

Aytona as ad interim Governor of the Central Bank. On the same day, the latter took
the corresponding oath.

On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed

office; and on December 31, 1961, he issued Administrative Order No. 2 recalling,
withdrawing, and cancelling all ad interim appointment made by President Garcia
after December 13, 1961, (date when he, Macapagal, had been proclaimed elected
by the Congress). On January 1, 1962, President Macapagal appointed Andres V.
Castillo as ad interim Governor of the Central Bank, and the latter qualified
immediately.

On January 2, 1962, both appointed exercised the powers of their office, although
Castillo informed Aytona of his title thereto; and some unpleasantness developed in
the premises of the Central Bank. However, the next day and thereafter, Aytona was
definitely prevented from holding office in the Central Bank.

So, he instituted this proceeding which is practically, a quo warranto, challenging

Castillos right to exercise the powers of Governor of the Central Bank. Aytona
claims he was validly appointed, had qualified for the post, and therefore, the
subsequent appointment and qualification of Castillo was void, because the position
was then occupied by him. Castillo replies that the appointment of Aytona had been
revoked by Administrative Order No. 2 of Macapagal; and so, the real issue is
whether the new President had power to issue the order of cancellation of the ad
interim appointments made by the past President, even after the appointees had
already qualified.

The record shows that President Garcia sent to the Commission on Appointments
which was not then in session a communication dated December 29, 1961,
submitting for confirmation ad interim appointments of assistant director of lands,
councilors, mayors, members of the provincial boards, fiscals, justices of the peace,
officers of the army, etc.; and the name of Dominador R. Aytona as Governor of the
Central Bank occupies number 45, between a justice of the peace and a colonel of
the Armed Forces.

Another communication of President Garcia bearing the same date, submitted a list
of ad interim appointments of Foreign Affairs officers, judges, fiscals, chiefs of
police, justices of the peace, mayors, councilors, etc. number 63 of which was that
of Dominador R. Aytona for Governor of the Philippines in the Boards of International
Monetary Fund, International Bank for Reconstruction and Development, etc.

A third communication likewise dated December 29, 1961, addressed to the

Commission on Appointments submitted for confirmation 124 names of persons
appointed as judges of first instance, members of provincial boards, and boards of
government corporations, fiscals, justice of the peace, even one associate justice of
this Court occupying position No. 8 and two associate justices of the Court of
Appeals (9 and 10) between an assistant of the Solicitor-Generals Office, and the
chairman of the board of tax appeals of Pasay City, who in turn are followed by
judges of first instance, and inserted between the latter is the name of another
associate justice of the Court of Appeals.

There were other appointments thus submitted by President Garcia on that date,
December 29, 1961. All in all, about three hundred fifty (350) midnight or last
minute appointments.

In revoking the appointments, President Macapagal is said to have acted for these
and other reasons: (1) the outgoing President should have refrained from filling
vacancies to give the new President opportunity to consider names in the light of his
new policies, which were approved by the electorate in the last elections; (2) these
scandalously hurried appointments in mass do not fall within the intent and spirit of
the constitutional provision authorizing the issuance of ad interim appointments; (3)
the appointments were irregular, immoral and unjust, because they were issued
only upon the condition that the appointee would immediately qualify obviously to
prevent a recall or revocation by the incoming President, with the result that those
deserving of promotion or appointment who preferred to be named by the new
President declined and were by-passed; and (4) the abnormal conditions
surrounding the appointment and qualifications evinced a desire on the part of the
outgoing President merely subvert the policies of the incoming administration.

It is admitted that many of the persons mentioned in the communication to the

Commission on Appointments dated December 29, 1961, did not qualify. There is
evidence that in the night of December 29, there was a scramble in Malacaan of
candidates for positions trying to get their written appointments or having such
appointments changed to more convenient places, after some last minute
bargaining. There was unusual hurry in the issuance of the appointments which
were not coursed through the Department Heads and in the confusion, a woman
appointed judge was designated Mr. and a man was designated Madam. One
appointee who got his appointment and was required to qualify, resorted to the rush
of asking permission to swear before a relative official, and then never qualified.

We are informed, it is Malacaans practice which we find to be logical to

submit ad interim appointments only when the Commission on Appointments is in
session. One good reason for the practice is that only those who have accepted the
appointment and qualified are submitted for confirmation. Nevertheless, this time,
Malacaan submitted its appointments on the same day they were issued; and the
Commission was not then in session; obviously because it foresaw the possibility
that the incoming President would refuse to submit later the appointees of his
predecessor. As a result, as already adverted to, some persons whose names were
submitted for confirmation had not qualified nor accepted their appointments.

Because of the haste and irregularities, some judges of first instance qualified for
districts wherein no vacancies existed, because the incumbents had not qualified for
other districts to which they had been supposedly transferred or promoted.

Referring specifically to judges who had not qualified, the course of conduct
adopted by Former Chief Justice Moran is cited. Being ambassador in Spain and
desiring to return to this Court even as associate justice, Moran was tendered an ad
interim appointment thereto by President Quirino, after the latter had lost the
election to President Magsaysay, and before leaving the Presidency. Said
Ambassador declined to qualify being of the opinion that the matter should be left
to the incoming newly-elected President.

Of course, nobody will assert that President Garcia ceased to be such earlier than at
noon of December 30, 1961. But it is common sense to believe that after the
proclamation of the election of President Macapagal, his was no more than a caretaker administration. He was duty bound to prepare for the orderly transfer of
authority the incoming President, and he should not do acts which he ought to
know, would embarrass or obstruct the policies of his successor. The time for debate
had passed; the electorate had spoken. It was not for him to use powers as
incumbent President to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan purposes. The filling up
vacancies in important positions, if few, and so spaced to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointees qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and planned induction of almost all of them a few hours
before the inauguration of the new President may, with some reason, be regarded
by the latter as an abuse Presidential prerogatives, the steps taken being apparently
a mere partisan effort to fill all vacant positions1 irrespective of fitness and other
conditions, and thereby deprive the new administration of an opportunity to make
the corresponding appointments.

Normally, when the President makes appointments the consent of the Commission
on Appointments, he has benefit of their advice. When he makes ad interim
appointments, he exercises a special prerogative and is bound to be prudent to
insure approval of his selection either previous consultation with the members of
the Commission or by thereafter explaining to them the reason such selection.
Where, however, as in this case, the Commission on Appointments that will consider
the appointees is different from that existing at the time of the appointment2 and
where the names are to be submitted by successor, who may not wholly approve of
the selections, the President should be doubly careful in extending such
appointments. Now, it is hard to believe that in signing 350 appointments in one
night, President Garcia exercised such double care which was required and
expected of him; and therefore, there seems to be force to the contention that
these appointments fall beyond the intent and spirit of the constitutional provision
granting to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this
Court resolves that it must decline to disregard the Presidential Administrative Order
No. 2, cancelling such midnight or last-minute appointments.

Of course, the Court is aware of many precedents to the effect that once an
appointment has been issued, it cannot be reconsidered, specially where the
appointee has qualified. But none of them refer to mass ad interim appointments
(three-hundred and fifty), issued in the last hours of an outgoing Chief Executive, in
a setting similar to that outlined herein. On the other hand, the authorities admit of
exceptional circumstances justifying revocation3and if any circumstances justify
revocation, those described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to
revoke after the appointee has qualified is the latters equitable rights. Yet it is
doubtful if such equity might be successfully set up in the present situation,
considering the rush conditional appointments, hurried maneuvers and other
happenings detracting from that degree of good faith, morality and propriety which
form the basic foundation of claims to equitable relief. The appointees, it might be
argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline,
whatever the resultant consequences to the dignity and efficiency of the public
service. Needless to say, there are instances wherein not only strict legality, but
also fairness, justice and righteousness should be taken into account.

WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby
dismiss the action, without costs.

Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.

Read case digest here.

Separate Opinions

PADILLA, J., concurring:

Once more this Court has to pass upon and determine a controversy that calls for
an interpretation of the provisions of the Constitution. The facts that gave rise to the
petition need not be restated as they are set forth in opinion rendered for the Court.
The question is whether the appointment of a person to a public office by a
President whose term of office was about to expire or cease is lawful or does not
contravene the Constitution; or, if lawful after the appointee has taken his oath,
until when would such appointment be valid and effective. The constitutional point
involved seems to have been overlooked the framers of the Constitution. It would
seem that the framers, well-meaning persons that they were, never foresaw an
eventuality such as the one confronting the Republic. The framers never thought
and anticipated that citizen elevated by the people to such an exalted office the
President of the Republic, would perform an act which though not expressly
prohibited by the Constitution and the law, ought not to be done, since a sense of
propriety would be enough to stop him from performing it.

The petitioner invokes section 10, paragraph 4, article VII, of the Constitution which
provides that

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.

Under these constitutional provisions there seems to be no doubt that the President
may make the appointment, and if approved by the Commission on Appointments,
it would unquestionably be lawful, valid and effective, but if disapproved or not

acted upon by the Commission on Appointments then the appointment becomes

ineffectual and the appointee ceases and can no longer perform the duties of the
office to which he had been appointed.

It is urged that the petitioners appointment having been made by the President
during the recess of the Congress and he having taken his oath, the appointment is
lawful, valid and effective until disapproval by the Commission on Appointments or
until the next adjournment of the Congress should the Commission on Appointments
fail to act on it.

Ad interim appointments that the President may make during the recess of the
Congress are those made during a period of time from the adjournment of the
Congress to the opening session, regular or special, of the same Congress. In other
words, if the President had convened in a special session the fourth Congress whose
term was to expire on the 30th of December 1961 and during such session the ad
interim appointments had been confirmed by the Commission on Appointments
there would be little doubt that the appointments would be lawful and valid.

The government established by the Constitution is one of checks and balances to

preclude and prevent arrogation of powers by officers elected or appointed under it.

Under the provisions of the Constitution The term of office of Senators shall be six
years and shall begin on the thirtieth day of December next following their
election.1 And The term of office of the Members of the House of Representatives
shall be four years and shall begin on the thirtieth day of December next following
their election.2Under section 10, paragraph 4, article VII, of the Constitution, above
quoted, the President may 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. .

The term recess, in its broadest sense, means and refers to the intervening period
between adjournment of a regular session of one hundred days exclusive of
Sundays, or of a Special session which cannot continue longer than thirty days, and
the convening thereof in regular session once every year on the fourth Monday of
January or in special session to consider general legislation or only such subjects as
he (the President) may designate.3 And such intervening period refers to the same
Congress that had adjourned and was to be convened. Such intervening period

cannot refer to two different Congresses, one that has adjourned and one newly
chosen or elected to meet in regular session as provided for by the Constitution, or
in special session by the call of the President.

The term of the President shall end at noon the thirtieth day of December
following the expiration four years after (his) election and the term of (his)
successor shall begin from such time.4

If the ad interim appointments made by the President during the recess of the
Congress are effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress a limitation on the power of the
President there is a cogent and strong reason for holding to be the intent of the
framers of the Constitution that such appointments made by him ceased to be valid
and effective after the term of the Congress existing at the time of the making of
such appointments had ended or expired. The end or expiration of the of the
Congress existing at the time of the making of the ad interim appointments by the
President is a stronger cause or reason for the lapse or ineffectuality of such
appointments than the next adjournment of the Congress. Since that Congress no
longer exists and hence can no longer convene and then adjourn. The effectivity
and validity of the appointment of the petitioner as Governor of the Central Bank
ceased, lapsed and expired on thirtieth of December 1961. He is no longer entitled
hold the office to which he had been appointed. My vote, therefore, is for the denial
of the petition.

Dizon, J., concurs.

I concur with the foregoing concurring opinion of Justice Padilla, the same being
based on an additional ground justifying denial of the petition under consideration.

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BAUTISTA ANGELO, J., concurring: .

In addition to the reasons stated in the resolution adopted by this Court on January
19, 1962, I wish to express the following views: .

1. The midnight appointments made by President Garcia were extended by him

under Section 10, Paragraph 4, Article VII of the Constitution which provides: 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. It is
clear that these appointments can only be made during the recess of Congress
because they are ad interim appointments.

The term recess has a definite legal meaning. It means the interval between a
session of Congress that has adjourned and another of the same Congress. It does
not refer to the interval between the session of one Congress and that of another. In
that case the interval is not referred to as a recess but an adjournment sine die.
Thus, in the case of Tipton v. Parker, 71 Ark. 194, the court said: The recess here
referred to by Judge Cooley means the intermission between sittings of the same
body at its regular or adjourned session, and not to the interval between the final
adjournment of one body and the convening of another at the next regular session.
When applied to a legislative body, it means a temporary dismissal, and not an
adjournment sine die. Since the appointments in question were made after the
Fourth Congress has adjourned sine die and ceased to function on December 30,
1961, they cannot partake of the nature of ad interim appointments within the
meaning of the Constitution.

2. The Commission on Appointments under our constitutional set-up is not

continuing body but one that co-exists with the Congress that has created it. This is
so because said Commission is a creation of the Senate and of the House of
Representatives. While the Senate is a continuing body, the House ceases at the
end of its fourth year. It cannot therefore be continuing it being a creation of a body

half of which is alive and the other half has ceased to exist. This theory can also be
gleaned from the proceedings of the constitutional convention.

Thus, the preliminary draft of the Philippine Constitution provides for a permanent
Commission and for the holding of sessions of the Commission even during the
recess of Congress. After mature deliberation the proposal was defeated and a
substitute was adopted which is now embodied in Article VI, Section 12, of our
Constitution. As a matter of fact, as finally adopted, the Commission on
Appointments has to be organized upon the convening of a new Congress after the
election of the Speaker of the House of Representatives or of the President of the
Senate, as the case may be, as provided for in Section 13, Article VI of the
Constitution (Article VII, Preliminary Draft of the Constitution, Vol. 2, Aruego: The
Framing of the Constitution, pp. 982, 987).

An ad interim appointment, to be complete, needs to be submitted to the

Commission on Appointments one the same is constituted. This is reflected in the
Constitution when it provides that such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of
the Congress (Section 10, Paragraph 4, Article VII). This mean that it must be
submitted to the Commission on Appointments of the Congress that has created it.
It cannot be submitted to the Commission on Appointments of a different Congress.
Since the appointments in question were submitted to the Commission on
Appointments which ceased to function on December 30, 1961, they lapsed upon
the cessation of said Commission. Consequently, they can be recalled by the new
Chief Executive.

3. An ad interim appointment is not complete until the appointee takes the oath of
office and actually takes possession of the position or enters upon the discharge of
its duties. The mere taking of the oath of office without actual assumption of office
is not sufficient to constitute the appointee the actual occupant thereof who may
not be removed therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d.
584). The case of Summers v. Ozaeta, 81 Phil., 754, cannot be cited as a precedent
as to when an ad interim appointment becomes permanent and binding. That case
involves a cadastral judge who was given an ad interim appointment as judge at
large. After assuming the office and discharging his duties, his appointment was not
confirmed. He claimed that he could still revert to his former position as cadastral
judge. True, this Court made a statement therein that an ad interim appointment
becomes permanent after taking the oath of office, but such statement is merely an
obiter dictum because the case could have been decided on the doctrine that,

having accepted an incompatible office, petitioner was deemed to have abandoned

the position of cadastral judge.

In relying on certain cases for the proposition that once an appointee has taken the
oath of office his appointment becomes irrevocable petitioner fails to consider that
in said cases there had either been an actual discharge of duty and actual physical
possession or assumption of office following the oath-taking as to constitute the
appointee the occupant of the position from which he cannot be removed without
cause. Even the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69,
cannot be invoked as a precedent, for there the appointees were merely nominated
and their nominations confirmed by the Commission on Appointments even if they
have later taken their oath of office. Certainly, they can no longer be deprived of
their appointments for then the executive would be acting in disregard of the
confirming body which is a coordinate and independent body not subject to his
control.

Since the appointments in question were made not in the light of the views herein
expressed, I am of the opinion that they did not ripen into valid and permanent
appointments and as such were properly recalled by the new Chief Executive.

Read case digest here.

CONCEPCION, J., concurring in part and dissenting in part: .

It is well settled that the granting of writs of prohibition and mandamus is ordinarily
within the sound discretion of the courts, to be exercised on equitable principles,
and that said writs should be issued when the right to the relief is clear (55 C.J.S. 25,

29, 73 C.J.S. 18). Insofar as the majority resolution relied upon discretion and the
equities of the case in denying said writs, I concur, therefore, in the aforementioned
resolution.

However, I cannot see my way clear to subscribing the observations therein made
representing the motives allegedly underlying petitioners appointment and that of
many others who are not parties in this case, and justifying the revocation of such
appointments. My reasons, among others, are: .

1. Save where the incumbent has a temporary appointment or is removable at the

will of the appointing power, an appointment once complete, by the performance of
all acts required by law of the appointing power, is irrevocable.

An appointment to office may be revoked at any time before the appointment

becomes final and complete, but thereafter unless the appointee is removable at
the will of appointing power. For the purpose of this rule, an appointment to office is
complete when the last act required of the person or body vested with the
appointing power has been performed. Where by constitutional, statutory, or other
legal provision it is required that certain steps be taken to make effective
appointment, it has been held that the appointment becomes complete beyond the
possibility of recall when the last of the prescribed steps is taken, and that, where
no method of appointment is provided, an appointment does not become effective
and beyond recall until the appointing officer by some act or word evinces a final
intent to vest the appointee with title to the office. (67 C.J.S., pp. 161-162) .

After the act of appointment is complete, the appointing authority may not revoke
its former appointment and make another. And appointment to office is complete
when the last act required of the person or body vested with the appointing power
has been performed. (56 C., p. 954) .

In all jurisdictions where appointment to office is regarded as an executive function,

as here, an appointment to office once made is incapable of revocation or
cancellation by the appointing executive in the absence of a statutory or
constitutional power of removal. Barrett v. Duff 114, Kan. 220; 217 P. 918; People v.
Mizner, 7 Cal. 519, State v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006;
Draper v. State, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D, page 305, Annotation.
(McChesney v. Sampson, 23 S.W. 2d., 584) .

May an appointment be revoked by reason of error or fraud? This question was

taken up in Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Scofield vs. Starr (63 A
512). The first involved a City Charter providing that its common council shall, in
joint convention, appoint a prosecuting attorney. In such convention, Coogan
obtained a majority of the votes cast and of the convention. Upon announcement of
this result, a member of the convention offered a resolution declaring Coogan
elected, but the resolution was defeated. Then, two resolutions were offered and
approved: one declaring that the ballots taken were null and of no effect by reason
of errors in the same and another declaring Barbour elected prosecuting attorney.
The issue was who had been appointed thereto. The court held that it was Coogan,
he having obtained a clear majority and there having been no error or fraud in the
voting, although it did not deny the power of the convention to correct errors and to
nullify the effects of fraud in the voting by invalidating the same and calling another
election, had the proceedings been tainted with such error or fraud.

The second case referred to a similar provision in a city charter, to the effect that
appointments by the common council shall be by ballot and that the person
receiving a plurality of ballots shall be elected. The first balloting taken for the
election of the city surveyor of Brigeport resulted in 25 ballots being cast. It was
announced that there was one ballot more than members voting, and that there
were 13 ballots for Scofield, 11 for Starr and one blank ballot. Scofield maintained
that this result amounted to his appointment precluding the council from taking a
new ballot but such pretense was rejected. Inasmuch as the number of ballots cast
exceeded the number of persons voting, the council was justified in believing that
the proceeding was not free from suspicion of fraud or mistake in the voting and,
accordingly in taking another vote.

In both cases, the fraud or mistake alluded to referred to the manner of voting or of
counting the ballots cast, not to the intent of the voters in choosing a particular
appointee.

2. An ad interim appointment, made during a recess of Congress, is complete and

irrevocable upon the performance of the last act required by law from the
appointing power, even without previous notice to the appointee, or acceptance by
him, or without subsequent action of the legislative organ that may terminate its
effectivity.

In the case of appointment made by a single executive such as a governor, mayor,

etc., it is undisputed that the appointment once made is irrevocable.

xxx

xxx

xxx

Where an appointment subject to confirmation by the senate is made by a governor

during a recess of the senate, the question arises as to whether such an
appointment may be reconsidered and withdrawn by the governor before it is acted
upon by the Senate.

xxx

xxx

xxx

In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. 918, where appointments made by
the governor during a recess of the legislature, which appointments could not be
confirmed by the senate as required by law until the next session of that body, were
revoked by the governors successor, and other persons were appointed to the
offices, such action by him being taken after the senate had convened and had
taken under advisement the confirmation of the persons first appointed to the
offices, but before the senate had taken any definite action with regard to such
confirmation, and the senate, confirmed the first appointee, but, despite this act of
the senate, commissions were issued by the governor to the second appointee, it
was held, in reliance upon the terms of the statutes which provided that the
governor should appoint persons to such offices with the advice and consent of the
senate, as distinguished from the provision of the Constitution of the United States
governing appointments by the President, which provides that the President shall
nominate and, by and with the advice and consent of the senate, shall appoint
persons to office, that the act of the governor in making the first appointments was
final and exhausted the power of the governors office in that regard unless and
until the appointments were rejected by the senate, and that, therefore, the persons
appointed by the first governor were entitled to the office. In the words of the court,
The power of the governor having been exercised, he had no further power of the
governor having been exercised, he had no further control over the respective
offices unless and until the appointees had been rejected by the senate. In reaching
this result, the court emphasized the difference between a nomination and an
appointment, holding that, where the statute relating to appointments by the
governor with the consent of the senate provides that the governor shall appoint
persons to the office with the consent of the senate, rather than merely nominate

persons for consideration by the senate, the appointment is final and conclusive
without confirmation. .

Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23 S.W. (2d.) 584, the act of
governor in making a recess appointment was held to be not merely a nomination
subject to revocation by the governor at any time prior to action thereon by the
senate, but a final and irrevocable appointment subject only to rejection by the
senate. In support of this result, it was said: It is urged that appointment to the
office consists of two separate acts, one by the governor and one by the senate,
and until both have acted there is no appointment such as to bring the incumbent
within the protection of the law. Even so, the two powers do not act concurrently,
but consecutively, and action once taken and completed by the executive is not
subject to reconsideration or recall. The fact that the title to the office, and the
tenure of the officer, are subject to the action of the senate, does not render
incomplete the act of the chief executive in making the appointment. The
appointment alone confers upon the appointee for the time being the right to take
and hold the office, and constitutes the last act respecting the matter to be
performed by the executive power. .

xxx

xxx

xxx

In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding that an appointment
made by a governor to fill an office which had expired during a recess of the
legislature was not merely an appointment to fill a vacancy which would expire at
the end of the next session of the legislature, but was an appointment for a full
term, and that the act of the governor during a subsequent session of the
legislature, in appointing another to the office and asking his confirmation by the
legislature, was unauthorized and void, it was said that, the power of the executive
having been once exercised, he had no further control over the office until the
appointee has been rejected by the senate. (89 ALR, pp. 138, 139, 140.) .

3. The irrevocability of the ad interim appointment adverted to above becomes

more apparent when we consider that the House, Commission on Appointments or
other agency of Congress charged with the function of terminating the effectivity of
such appointment, may act thereon, by approving or disapproving the same, even
though the Executive had not submitted or forwarded it to said House, Commission
or agency of Congress, and even though either the outgoing or the incoming

Executive shall have submitted for confirmation the name of a subsequent

appointee in lieu of the first one..

This was the situation met in People ex rel, Emerson vs. Shawver (30 Wyo 366, 222
Pac. 11). The facts therein were: On July 1, 1919, Governor Carey of Wyoming
appointed Emerson as state engineer, to fill the vacancy caused by the resignation
of its incumbent. Upon the expiration of the latters term, Governor Carey
reappointed Emerson for a full term of six (6) years, from and after April 1, 1921.
This last appointment was confirmed by the state legislature at its next session in
1923. Prior thereto, however, Governor Careys term had expired and his successor
had appointed Shawver as state engineer. Thereupon Shawver ousted Emerson
from such office. It was held that Emerson had a better right thereto; that his
appointment in 1921 was a completed appointment, requiring no action by the
Senate to entitle him to hold said office; that a recess appointment once made by
the executive is not subject to reconsideration or recall, even though not as yet
confirmed by the Senate, inasmuch as, the appointment alone confers upon the
appointee for the time being the right to take and hold the office, and constitutes
the last act respecting the matter to be performed by the executive power; and
that, although the term of Governor Carey had expired and neither he nor his
successor had forwarded Emersons appointment to the Senate for confirmation or
requested the Senate to act upon said appointment, the same had been validly
confirmed by said body, for .

The provision as to the office here in question found in the Constitution does not say
that the appointment made by the Governor shall be confirmed by the Senate when
requested by the former, or upon a communication by him submitting the matter to
the Senate. And we perceive no substantial reason for adding by construction any
such restriction upon the Senates right to act. (People v. Shawver, 222 P. 11; see,
also, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382; State v. Williams, 20 S.C.
13; Richardson v. Henderson, 4 Wyo. 535, 35 Pac. 517, and other cases cited in the
Shawver case.) .

4. The foregoing goes to show, also, that the question whether the Commission on
Appointments is or is not a continuing body can not affect the determination of the
case. Besides, the constitutional provision making an ad interim appointment, if not
disapproved by the Commission on Appointments, effective only until the next
adjournment of Congress, clearly indicates that such Commission must have an
opportunity to approve or disapprove the appointment and that its inaction, despite
such opportunity, at the session of Congress next following the making of the
appointment during which it could have met, and, probably, did meet must be

understood as an expression of unwillingness to stamp its approval upon the act of

the executive. No such opportunity exists when the outgoing Congress has not held
any session, regular or special after the making of the appointment and before the
expiration of the term of said Congress, and the new Congress has not, as yet,
organized itself or even met.

5. The American rule concerning irrevocability of appointments is bolstered up in

the Philippines by Section 4 of Article XII of the Constitution, which provides that
no officer of employee in the Civil Service shall be removed except for cause as
provided by law. (Article VII, Section 4.) .

In fact, in his concurring opinion in Eraa vs. Vergel de Dios (85 Phil., 17), our
distinguished Chief Justice pointed out that the revocation of an appointment, if
feasible, should be communicated to the appointee before the moment he
qualified, and that any revocation thereafter, is tantamount to removal and must
be judged according to the rules applicable to the removal (emphasis ours). In the
present case, the revocation of petitioners appointment was not communicated to
him before he qualified by taking his oath of office. It is not even claimed that any of
the statutory causes for removal of petitioner herein exists, or that the procedure
prescribed for such removal has been complied with.

6. Once an appointee has qualified, he acquires a legal, not merely equitable right,
which is protected not only by statute, but, also by the Constitution, for it cannot be
taken away from him, either by revocation of the appointment or by removal,
except for cause, and with previous notice and hearing, consistently with said
Section 4 of Article XII of our fundamental law, and with the constitutional
requirement of due process (Segovia vs. Noel, 47 Phil., 547; Sec. 67 C.J.S. 117, 42
Am. Jur. 887). (See also, People ex rel Ryan v. Green, 58 N. v. 295; People vs.
Gardner, 59 Barb 198; II Lewis Sutherland Statutory Construction, pp. 1161 and
1162; Mechem on Public Officers, Sec. 389; 22 R. C. L. 377- 378; 25 Am. Dec. 690691, 703).

7. The case of Tipton vs. Parker (74 S. W., 298) has been cited in support of the
theory that Congress of the Philippines was not in recess on December 29, 1961,
and that, accordingly, ad interim appointments could not validly be made in such
date. The question involved in said case was whether a committee of the Senate of
Arkansas could be authorized by the same to function after the adjournment sine
die of the regular session of the state General Assembly. The State Supreme Court

considered as decisive authority the view expressed by Judge Cooley, to the effect
that a legislative committee has no authority to sit during a recess of a House
which appointed him, without its permission to that effect. The issue thus hinged
on the meaning of the term recess as used by Judge Cooley. Resolving this
question, said court held that the recess referred to by Judge Cooley was only the
intermission between the sittings of the same body at its regular or adjourned
session and not to the interval between the final adjournment of one body and the
convening of another at the next regular session..

In this connection, it should be noted that, as an agency of the Senate, the

committee involved in said case could not operate for its principal beyond the
latters term. Moreover, under the Constitution of Arkansas, the regular biennial
session of the General Assembly could not exceed 60 days, unless by a vote of 2/3
of the members of each of the two Houses of the legislature. Inasmuch as the
Senate could not, without the concurrence of the House, directly extend the period
of its regular session, neither could it, without such concurrence, indirectly extend
said period, by granting its aforementioned committee the authority to function
beyond said period. As stated by the Court the committee, being the mere agency
of the body which appointed it, dies when the body itself dies, unless it is continued
by law, which the Senate may not enact, without the concurrence of the House..

The decision in said case did not seek to define the meaning of the term recess as
used in any constitution or statute. It did not even refer to the authority to make
appointments during recess. It has absolutely no bearing, therefore, on the issue
before us.

Upon the other hand, Dr. Jose M. Aruego, a prominent member of the constitutional
convention, says, in his work on The Framing of the Philippine Constitution (Vol I,
pp. 434-435), that the draft of the provision on ad interim appointments by the
President, as submitted by the corresponding committee, followed the principles of
the Jones Law and that the recommendation of the committee was readily approved
on the floor of the convention, although the committee on style gave said provision
its present phraseology. Pursuant to the Jones Law, appointments made while the
Senate is not in session shall be effective either until disapproval or until the next
adjournment of the Senate. Hence, the term recess appearing in Section 10(4) of
Article VII of our Constitution should be construed to mean while Congress is not in
session and this is confirmed by the practice consistently observed in the
Philippines for time immemorial, as well as the ad interim appointment extended by
President Macapagal to respondent Castillo.

8. The case of McChesney vs. Sampson (23 S. W. 2d. 584) has, also, been invoked in
support of the proposition that an ad interim appointment is not complete until the
appointee takes the oath of office and actually takes possession of the position or
enters upon the discharge of its duties and that, before such actual taking of
possession, though after the oath taking, the appointee may be removed without
cause.

We have not found in said case anything justifying such claim. The issue in said
case was whether a state governor could recall an unconfirmed appointment of
McChesney to the state textbook commission when there had been no session of
the Senate subsequent to the appointment, and such issue was decided in the
negative.

Although, in addition to accepting the appointment, McChesney had qualified and

exercised the function of the office, the decision of the Court clearly indicates that it
was not necessary for him either to discharge the duties of the office or even to
take the oath of office, in order to render his appointment irrevocable. The Court
explicitly declared that the appointment, once completed by the executive is not
subject to reconsideration or recall; that the appointment is complete when the
appointing authority has performed the acts incumbent upon him to accomplish the
purpose; and that in the case of recess appointments, like that of McChesney, the
appointment alone confers upon the appointee for the time being the right to take
and hold the office and constitutes the last act respecting the matter to be
performed by the executive power completing the appointment and rendering the
same irrevocable.

In short, the McChesney case is authority for the petitioner herein.

9. Most, if not all appointments made by the President have two (2) aspects,
namely, the legal and the political. The first refers to his authority to make the
appointment. The second deals with the wisdom in the exercise of such authority,
as well as with its propriety. Whether given vacancy or number of vacancies should
be filled, or who among several qualified persons shall be chosen, or whether a
given appointment or number of appointment will favor the political party to whom
the power of appointment belongs and will injure the interest of a rival political
party and to what extent, are, to my mind, essentially and typically political
matters. Hence, I believe that the question whether certain appointments should be

sanctioned or turned down by reason of the improper, immoral or malevolent

motives with which said matters were allegedly handled is, likewise, clearly political,
and as such, its determination belongs, not to the courts of justice (Vera vs. Avelino,
77 Phil., 192, 205; 16 C.J.S 689-690; Willoughby on the Constitution, Vol. III 13261327), but to the political organ established precisely to check possible abuses in
the exercise of the appointing power the Commission on Appointments.

Indeed, I can hardly conceive of any question more patently and characteristically
political than this one, or more appropriate for determination of said body. Neither
the possible or probable control thereof by members of the Nacionalista Party nor
the number of offices or appointments involved can affect the nature of the issue.
Surely, its political character is the same whichever political party may have the
largest number of votes in the Commission on Appointments. The big number of
said appointments merely tend to make more manifest the political complexion
thereof and its non-justifiable nature.

10. In Osmea vs. Pendatum (L-17144, October 28, 1960), we refused to disturb the
action of the House of Representatives in suspending a member thereof who had
made derogatory imputations against the President of the Philippines upon the
ground that such imputations constituted a breach of the courtesy due to a
coordinate branch of the Government. Yet, in the present case, imputations similarly
derogatory to the same branch of the Government are, in effect, made in the
majority resolution.

I cannot see how such imputations can be reconciled with the position taken by this
Court in the Osmea case and in other cases (Barcelona vs. Baker, 5 Phil., 87;
Severino vs. Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil., 612;
Alejandrino vs. Quezon, 46 Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs.
Francisco, L-4638, May 8, 1951) in which it fastidiously observed the theory of
separation of powers (Osmea vs. Pendatum, supra). Thus, in Santos vs. Yatco (55
Off. Gaz. 8641), in which a department head was sought to be enjoined from
electioneering, in view of the explicit provision of the Civil Service Act of 1959
(Republic Act No. 2260, section 29), prohibiting all officers and employees in the
civil service, whether in the competitive or classified, or non-competitive or
unclassified service, from engaging directly or indirectly in partisan political
activities or taking part in any election except to vote, we held that the issue therein
raised was one of impropriety as distinguished from illegality, and that, as such, it
is not justiciable by this Court. In Mabanag vs. Lopez Vito (78 Phil., 1), we refused
to decide, upon the same ground, whether specified numbers of votes constituted
three-fourths of all members of each House of Congress. In Vera vs. Avelino (77

Phil., 192), we not only declared that the judiciary is not the repository of remedies
for all political or social evils, but, also, quoted with approval the statement, made
in Alejandrino vs. Quezon (46 Phil., 81), to the effect that the judicial department
has no power to revise even the most arbitrary and unfair action of the legislative
department, or of either House thereof, taken in pursuance of the power committed
exclusively to that department by the Constitution. (Emphasis ours.) .

11. In the present case, we have completely reversed our stand on the principle of
separation of powers. We have inquired into the motives of the Executive
department in making the appointments in question, although it is well settled,
under the aforementioned principle, that: .

Generally courts cannot inquire into the motive, policy, wisdom, or expediency of
legislation.

The justice, wisdom, policy, necessity, or expediency, of a law which is within its
powers are for the legislature, and are not open to inquiry by the courts, except as
an aid to proper interpretation. (16 C.J.S. 471-478) .

If this is true as regards the legislative branch of the government, I can see no valid
reason, and none has been pointed out, why the same norm should not govern our
relations, with the executive department. However, we have not merely disregarded
such norm. We are, also, in effect, restraining the Commission on Appointments
an organ of a coordinate, co-equal branch of the Government from acting on the
questioned appointments. What is more, we are virtually assuming in advance that
said body which has not been organized as yet and whose membership is still
undetermined will not act in harmony with the spirit of our Constitution.

12. It is trite to say that certain moral and political aspects of the issue before us
cannot but produce a strong aversion towards the case of petitioner herein and the
hundreds of others appointed under the same conditions as he was. Although
members of the bench must always endeavor to minimize the influence of
emotional factors tending to affect the objectivity essential to a fair and impartial
appraisal of the issues submitted for their determination, it is only natural and, I
venture to add, fortunate (for, otherwise, how could they hope to do justice to their
fellowmen?) that they should basically react as other members of the human

family. This is probably the reason why Justice Douglas of the Federal Supreme
Court of the U.S., said, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688) :

Cases of notorious criminals like cases of small, miserable ones are apt to
make bad law. When guilt permeates a record, even judges sometimes relax and let
the police take shortcuts not sanctioned by constitutional procedures. . The harm
in the given case may seem excusable. But the practices generated by the
precedent have far-reaching consequences that are harmful and injurious beyond
measurement..

Let us hope that no such consequences will flow from the precedent established in
this case.

BARRERA, J., dissenting:

The instant case started with a simple petition for prohibition and mandamus with
preliminary injunction instituted by petitioner Aytona who claims to have been duly
appointed ad interim Governor of the Central Bank, against respondent Castillo who,
allegedly accompanied by his correspondent Colonel Gutierrez and a host of heavily
armed Philippine Constabulary Rangers, interfered with and prevented the
petitioner in the discharge of his duties and prerogatives as such Governor of the
Central Bank. During the hearing, however, and immediately thereafter, a great
amount of extraneous matter affecting persons not parties to the proceedings has
been introduced into the case and a veritable avalanche of memoranda after
memoranda and manifestations after manifestations swelled the records and helped
involve the issues. One among the dozens who asked to be admitted as amici
curiae, even presented an answer in behalf of the people to support the side of the
respondents. Unfortunately, in the confusion, the case of the immediate parties
became obscured by considerations of circumstances and matters for and with
which petitioner and respondents are not directly connected..

In my opinion, the fundamental questions which this Court is called upon to resolve
in the present case a specifically: .

(1) Is the ad interim, appointment of petitioner Aytona valid when extended? .

(2) If so, did it automatically lapse with the ending the term of office of the twelve
Congressmen composing one-half of the membership of the Commission
Appointments? .

(3) May this appointment be legally recalled or withdrawal after Aytona has
qualified? .

Before entering into the discussion of the propriety, morality and wisdom of the
appointment, it is necessary, I believe, that the foregoing legal propositions must
first be cleared out.

I. The Validity of Aytonas Appointment: .

Aytonas ad interim appointment is assailed on the theory that it was not made
during a recess of Congress as provided in paragraph 4, section 10 of Article VII of
the Constitution. It is claimed for the respondents dents that the word recess
means the intermission between sittings of the same body at its regular or
adjourned session, and not to the interval between the final adjournment of one
body and the convening of another at the next regular session. When applied to a
legislative body, it means a temporary dismissal, and not adjournment sine die. In
support of this view, counsel cites the case of Tipton v. Parker, 71 Ark. 193, from
which the foregoing quotation was taken.

An examination of this case, however, discloses that it did not refer to the power of
the President to make ad interim appointments. The pronouncement was made in
connection with the interpretation of Section 17, Article 5 of the Constitution of the
State of Arkansas. The case involved the validity of the certificate of the auditor
with reference to the legality of the expenses of a committee of the State Senate
authorized by the latter to make certain investigations beyond the duration of the
session of the General Assembly. The court, in declaring the certificate without
sanction of law, stated: .

The Senate has no power by resolution of its own to extend its session, and neither
did it have power to such separate resolution to continue its committee, a mere
agency of the body, beyond the term of the body itself which created it. .

in view of the provisions of the aforementioned Section 17, Article 5 of the state
Constitution prescribing that the regular biennial session of the Legislature shall
not exceed 60 days, unless by 2/3 vote of the members elected to each house, and
section 23 requiring a vote of the majority of each house to enact a law or pass a
resolution having the force and effect of a law. Apparently an opinion of Judge
Cooley seemingly to the contrary was cited to refute this view of the court, and so
the decision went on to say:

Each house, says Judge Cooley, must also be allowed to proceed in its own way in
the collection of such information may seem important to a proper discharge of its
functions; and whenever it is deemed desirable that witnesses should be examined,
the power and the authority to do so is very properly referred to a committee, with
any such powers short of final legislative or judicial action as may seem necessary
or expedient in the particular case. Such a committee has no authority to sit during
a recess of the house which has appointed it, without its permission to that effect.
But the house is at liberty to confer such authority if it sees fit.

It is in this connection and evidently in a desire to explain the opinion of Judge

Cooley that the court made the pronouncement relied upon by respondents, thus: .

. The recess here referred to by Judge Cooley we think should be construed to

mean only the intermission between sittings of the same body at its regular or
adjourned session, and not to the interval between the final adjournment of one
body and the convening of another at the next regular session. When applied to a
legislative body, it means a temporary dismissal and not an adjournment sine die.

The conclusion reached by the court can not be otherwise. The case refers to the
powers of one house of the state Legislature, with the concurrence of the other, to
confer authority upon its own committee to act beyond the duration of the session
of the General Assembly. Certainly, Judge Cooleys view that each house has power
to confer authority to its committee to act during a recess must be understood to
exist only during the life of the house creating the committee. It can not go beyond
its own existence, that is, beyond its adjournment sine die.

But this ruling is no argument that the Executives power to make appointments
during such adjournment sine diedoes not exist just because a house of the
legislature lacks power to authorize its committee to act during the same
adjournment. One refers to the power of a defunct body to act beyond its life; the
other refers to the power of another authority, the executive, to perform its
functions after the expiration of that other body. Non-existence of the first does not
mean non-existence of the other.

It is to be noted that the different counsel advocating the cause of the respondents
are not even agreed in the application of their interpretation of the word recess.
Some of them argue that the interregnum which they contend is not recess,
compromises the entire period between the adjournment of the 4th Congress in
May, 1961 and the opening of the 1st session of the first session of the 5th
Congress on January 22, 1962, so that all ad interim appointments extended during
this period are null and void. Others claim that such interregnum is that period
between December 13, 1961, date of adjournment of the last session of the 4th
Congress, and January 22, 1962. It seems that President Macapagal is of this same
view because his administrative Order No. 2 specifically refers to all appointments
made after December 13, 1961. Still others, at least one, advanced the theory
during the oral argument that the banned period is that between the adjournment
of the 4th Congress in May, and December 30, 1961, excluding therefrom the period
between this last date and January 22, 1962. Obviously, this theory was advanced
in an effort to lend validity to the appointments recently made by President
Macapagal, for if the entire period between May or December, 1961 to January 22,
1962 is held not a recess, but an adjournment sine die, then all appointments
heretofore made by the present Chief Executive would suffer the same defect as
those extended by former President Garcia. This last argument is unavailing
because it, likewise, is untenable, tested upon the same authority cited by counsel,
i.e., that the term recess means the intermission between sittings of the same
body. Since the 5th Congress has not as yet even convened, the period between
December 30 and January 22 can not be a recess of the 5th Congress because it,
definitely, is not an intermission between sittings of the same body.

In the circumstances, it seems it is an over-statement to say that the term recess

has a definite legal meaning in the sense attributed to it in the Tipton vs. Parker
case. The confusion in the minds of the several counsels for the respondents as to
the application of the alleged meaning of the term, indicates a belabored effort on
their part to impute a meaning to satisfy their case. Upon the other hand, we find in
Hinds Precedents of the House of Representatives (Vol. 5, pp. 852-853), a

legislative interpretation by the United States Senate made during the discussion of
the term recess of the Senate in connection with the Presidents1 power to make
appointments, as follows: .

The word recess is one of ordinary, not technical, signification, and it is evidently
used in the constitutional provision in its common and popular sense. It means in
Article II, above referred to, precisely what it means in Article III, in which it is again
used. Conferring power upon the executive of a State to make temporary
appointment of a Senator, it says: .

And if vacancies happen, by resignation or otherwise, during the recess of the

legislature of any State, the executive thereof may make temporary appointments
until the next meeting of the legislature, which shall then fill such vacancies. .

It means just what was meant by it in the Article of Confederation, in which it is

found in the following provision: .

The United States in Congress assembled shall have authority to appoint a

committee to sit in the recess of Congress, it be denominated a committee of the
States, and to consist of one delegate from each State. .

It was evidently intended by the framers of the Constitution that it should mean
something real, not something imaginary; something actual, not something
fictitious. They used the word as the mass of mankind then understood it and now
understand it. It means, in our judgment, in this connection the period of time when
the Senate is not sitting in regular or extraordinary session as a branch of the
Congress, or in extraordinary session for the discharge of executive functions; when
its members owe no duty of attendance; when its Chamber is empty; when,
because of its absence, it cannot receive communications from the President or
participate as body in making appointments. .

The Attorney General of the United States was also of this view when he stated: .

The recess of the Senate during which the President shall have power to fill a
vacancy that may happen, means the period after the final adjournment of
Congress for the session and before the next session begins; while an adjournment
during a session of Congress means a merely temporary suspension of business
from day to day, or for such brief periods of time as are agreed upon by the joint
action of the two houses. The President is not authorized to appoint an officer
during the current holiday adjournment of the Senate, which will have the effect of
an appointment made in the recess occurring between two sessions of the Senate.
(President Appointment Officers Holiday Recess, 1901, 23 Op. Atty. Gen. 599,
(U.S.C.A. Const. Art. 2, Sec. 2[2]..

It is worthwhile to note that our Constitution in paragraph 4, Section 10 of Article VII

speaks of recess without making any distribution between the sessions one
congress and the sessions of another. And it is trite to say that when the law makes
no distinction, no distinction should be made, especially if to do so would result in a
strained interpretation thereof and defeat the evident purpose of the framers of the
Constitution in this instance, to render it certain that at times there should be,
whether the Congress is in session or not, an officer for every office, entitled to
discharge the duties thereof. (5 Hinds, op. cit., p. 853.) .

II. Lapsing of Aytonas Appointment: .

It is contended for the respondents that since 12 members of the Commission on

Appointments ceased to be such upon the expiration of their term of office at
midnight of December 29, 1961, the Commission on Appointments likewise ceased
to exist on the theory that creation can not exist beyond the life of its creator at
least with respect to one-half of its members. This seems to stem from the wrong
notion that the Commission on Appointments is a creature of the Congress. This
confuses the Commission on Appointments as a constitutional body with its
members. The body continued to exist, but only its membership changes
periodically. When the Constitution provides in Section 13 of Article 6 thereof that
the Electoral Tribunals and the Commission on Appointments shall be constituted
within 30 days after the Senate and the House of Representatives shall have been
organized with the election of their President and Speaker, respectively, it did not
mean that the Senate and the House of Representatives thereby create said bodies,
no more than the President can be said to create the Supreme Court by appointing
the Justices therein. It simply ordained that the Commission be constituted or
organized by electing the members thereof, whose positions have already been
created in virtue of Section 12 of the same Constitution. To hold the Electoral
Tribunals and the Commission on Appointments are non-existing during the period

from December 30, 1961 to January 22, 1962 (and during the corresponding period
every four years thereafter) will result in an absurdity and a situation destructive of
the normal processes provided in the Constitution. One of such absurd results would
be that no electoral protest against any elected and proclaimed congressman or
senator can be legally filed with the Electoral Tribunals within the period prescribe
by their rules, that is, within fifteen days following the proclamation of the results of
the election, which period falls within the time when the Electoral Tribunals (as is
the case of Commission on Appointments) are allegedly non-existent.

The proceedings in the Constitutional Convention are cited to support the theory
that the Commission on Appointments is not a permanent commission. A review of
the records, however, of that convention reveals that what was intended in the
proposed draft was to authorize the Commission on Appointments to hold sessions
even when the Congress is not in session. The mere fact that such a proposal was
defeated and, consequently, the word permanent was not adopted in the final
text, does not import that the Constitution meant to give an off and on existence to
the Commission on Appointments lapsing every four years when the twelve of its
members cease to be such. On the contrary, it seems more logical to hold that the
legal existence of the Commission as well as the Electoral Tribunals continue
irrespective of the vacancies that may exist in the membership thereof. It is for this
reason that the personnel of these bodies do not cease periodically, but continue to
perform their duties in their respective offices for which they are legally paid their
salaries by the government. It seems clear, therefore, that the Commission on
Appointments did not lapse on December 29, 1961. Neither did the appointment of
Aytona lapse on that date because the same could not be acted upon by the
Commission on Appointments during the recess of the Congress.

III. May the appointment of Aytona be legally recalled or withdrawn after he has
qualified for the position to which he was appointed? .

Precedents are to the effect that when once an appointment has been extended by
the Chief Executive who, as is provided in our Constitution, has the sole power of
appointment subject only to the consent of the Commission on Appointments, and
the appointee has accepted the appointment, the same becomes complete and the
appointing power can not withdraw it except in cases where the tenure of the
appointee is at the Chief Executives pleasure or upon grounds justifying removal
and after due process. This is not because the appointment constitutes a contract
(for truly a public office can not be subject of any contract), but because of the
provisions of the Constitution itself to the effect that no officer or employee in the
Civil Service shall be removed or suspended except for cause as provided by law.

If, therefore, the recall or the withdrawal of the appointment of Aytona was not
authorized by law, then his assumption of the functions of his office on January 2,
1962 was clearly within his legal right and the interference of Castillo, aggravated
by the assistance or at least the presence of members of the Armed Forces, was
clearly unlawful.

The foregoing disposes, in my opinion, the legal issue and the rights of the parties in
the present case. But against these, to me, clear mandates of the Constitution and
the legal and judicial precedents, respondents have appealed to this Court for it to
exercise judicial statesmanship invoking the spirit of the Constitution. It is claimed
that there was a manifest abuse of power by the outgoing President in extending,
on the eve of the expiration of his term, some three hundred and fifty ad interim
appointments to fill an equal number of vacancies in the different branches of the
government; that no proper consideration was given of the merits of the
appointees, it appearing that in the case of at least some of the appointees to the
judiciary, their assurance of an immediate assumption of office or the taking of oath
was made a condition precedent to the appointments, and that there was a wild
scramble in Malacaan among the appointees on the night of December 29. We are
scandalized by this and expect the Court to apply the remedy. What of the
proceedings in Congress during the last day of session when bills after bills are
passed in a manner not too dissimilar to the described scene in Malacaan? Can the
Supreme Court be expected to correct this too by declaring all such laws as invalid
just as we are asked to invalidate these appointments? .

Be this as it may, whatever may be our personal views on this matter, I agree with
Mr. Justice Concepcion that not all wrongs or even abuse of power can be corrected
by the exercise of the high prerogatives of the Supreme Court vested in it by the
Constitution. As I take it, the higher and more delicate is the prerogative, the
greater should be the degree of self-restraint in the exercise thereof, lest the fine
and tested scale of checks and balances set up by the Constitution be jarred. In the
same manner that we expect circumspection and care, even double care, on the
part of the other two co-equal coordinate departments of the government, so must
we be most cautious and slow in judging the morality, propriety and good faith
involved in the actuations of the other departments in matters coming within their
competence. The remedy, I believe, under the circumstances is with the
Commission on Appointments to which the appointments have been submitted. The
more fact that it is expected that the Commission on Appointments would be
controlled by the party of the outgoing President is immaterial, because legal
processes can not be made to depend upon the fortunes of political parties, for
there is still the ultimate remedy by the people in all authority. At any rate, as has
already been aptly said: the judiciary is not the repository of remedies for all

political or social evils, and that the judicial department has no power to revise even
arbitrary or unfair action of the other departments taken in pursuance of the power
committed exclusively to those departments by the Constitution..

May I add: all the scandalous circumstances brought to the attention of this Court
did not link the petitioner herein, save for the fact that this appointment was
extended on the same day as those issued under the unusual and irregular
circumstances attending the other appointments. If at all, there is evidence in favor
of Aytona to the effect that insofar as he is concerned, his appointment to the
position of Governor of the Central Bank has been under consideration for a long
time and that he is qualified for the position. It can not, therefore be said that with
respect to him there was no mature deliberation and due consideration of his
qualifications and of the need of the service. he charge was made that the position
of Governor of the Central Bank has been vacant for several months and that the
President should have filled it earlier. Yet, when the President actually filled it as he
did, he is criticized claiming that there was no immediate need for such action in
view of the fact that there was an Acting Governor. That it was really necessary to
fill the position is evidenced by the act of President Macapagal himself in making his
own appointment hardly twenty-four hours after he recalled the appointment of
Aytona.

Summarizing, I would say that all the circumstances cited by the respondents that
have surrounded the issuance of the appointments in question, have to do with the
mode or manner of the exercise of the authority to make the appointment, quite
apart from the existence of the authority itself. The observance of good faith,
morality and propriety by the other two co-equal coordinate departments in the
performance of their functions must be secured by their sense of duty and official
oath hand not by any supervisory power of the courts..

The role of courts in our scheme of government is to interpret the law and render
justice under it. This simply means that whatever may be our own personal feelings
as to the propriety, morality, or wisdom of any official act or actuation of a public
officer or any agency of the government within their respective competence
brought to the attention of the Court for adjudication, they should not be permitted
to prevail over clear legal considerations, for ours is a regime under the Rule of
Law..

In view of the foregoing, I am constrained to register my dissent.

Read case digest here.

Footnotes

BENGZON, C.J.:

1These positions had been vacant for months.

2The 4th Congress expired at midnight December 29, 1961..

389 A.L.R., 135 Anno.

PADILLA, J., concurring:

1Section 3, Article VI.

2Section 6, Article VI.

3Section 9, Article VI.

4Section 4, Article VII.

BARRERA, J., dissenting:

1The power of the U.S. President to make appointments is by and with the advice
and consent of the Senate..

Read case digest here.

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Date : October 31, 2011
Tags: Appointing Power, Aytona vs Castillo, case brief, case digest, constitutional
law, G.R. No. L-19313, Garcia midnight appointments, Jurisprudence, Midnight
Appointments, political law
Categories : Constitutional Law, Jurisprudence, Political Law, SCRA
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