Flores vs Drilon

June 22, 1993

GR No. 104732
Ponente: Bellosillo, J.
FACTS:
The case involves an elected officials (Mayor Richard Gordon) appointment to head the SBMA as
CEO
The constitutionality of Sec. 13 par. (d) of RA 7227 (Bases Conversion and Development Act of 1992) is
being questioned. Following the law, the Mayor of Olonggapo will be appointed as Chairman/CEO of
Subic Bay Metropolitan Authority for its first year of implementation.
Petitioners claim that said assailed rule infringes on the following constitutional & statutory provisions:
(a) Sec. 7, first par., Art. IX-B, of the Constitution: "[n]o elective official shall be eligible for appointment or
designation in any capacity to any public officer or position during his tenure,"
(b) Sec. 16, Art. VII, of the Constitution:"[t]he President shall . . . . 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",
(c) Sec. 261, par. (g), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g)
Appointment of new employees, creation of new position, promotion, or giving salary increases.
During the period of forty-five days before a regular election and thirty days before a special
election, (1) any head, official or appointing officer of a government office, agency or
instrumentality, whether national or local, including government-owned or controlled
corporations, who appoints or hires any new employee, whether provisional, temporary or casual,
or creates and fills any new position, except upon prior authority of the Commission. The
Commission shall not grant the authority sought unless it is satisfied that the position to be filled
is essential to the proper functioning of the office or agency concerned, and that the position shall
not be filled in a manner that may influence the election. As an exception to the foregoing
provisions, a new employee may be appointed in case of urgent need: Provided, however, That
notice of the appointment shall be given to the Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this provision shall be null and void. (2)
Any government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-owned or
controlled corporations . . . .

ISSUE:
Is Sec. 13 par. (d) of RA 7227 unconstitutional?
HELD:
Yes. Hence, Mayor Gordon is ineligible. He may instead be a de facto officer.

RATIO:
What the law states is exactly what the constitutional provisions prevent from happening: a possible
concentration of several public positions in one person. In as much as Mayor Gordons capabilities are not
questioned by the court, it still remains that the law prohibits such an appointment making the very
provision of RA 7227 unacceptable. The said provision on appointment of RA 7227 (which at its core
should be afforded widest discretion) is unnecessarily limiting and inconsistent with the constitution.
It is also important to note that provisions (a) and (b) as stated above presents a clear distinction between
elected and appointed officials. The exemption of holding more than 1 appointed post for appointed
officials cannot be extended to elected officials.
SBMA CEO was intended to be an appointed post and not merely an ex-officio post. Hence, it very
well falls under the said restriction.