THIRD DIVISION
[G.R. No. 131429. August 4, 1999]
OSCAR BERMUDEZ, ARTURO A. LLOBRERA and CLAUDIO L. DAYAON, petitioners, vs. EXECUTIVE SECRETARY RUBEN TORRES, BUDGET SECRETARY SALVADOR ENRIQUEZ, JR., JUSTICE SECRETARY TEOFISTO GUINGONA, JR., and ATTY. CONRADO QUIAOIT, respondents.
D E C I S I O N
VITUG, J.:
The validity and legality of the
appointment of respondent Conrado Quiaoit to the post of Provincial Prosecutor
of Tarlac by then President Fidel V. Ramos is assailed in this petition for
review on certiorari on a pure question of law which prays for the
reversal of the Order,[1] dated 20 October 1997, of
the Regional Trial Court (Branch 63) of Tarlac, Tarlac, dismissing the petition
for prohibition and/or injunction and mandamus, with a prayer for the
issuance of a writ of injunction/temporary restraining order, instituted by
herein petitioners.
The occurrence of a vacancy in the
Office of the Provincial Prosecutor of Tarlac impelled the main contestants in
this case, petitioner Oscar Bermudez and respondent Conrado Quiaoit, to take
contrasting views on the proper interpretation of a provision in the 1987
Revised Administrative Code. Bermudez,
the First Assistant Provincial Prosecutor of Tarlac and Officer-In-Charge of
the Office of the Provincial Prosecutor, was a recommendee[2] of then Justice Secretary
Teofisto Guingona, Jr., for the position of Provincial Prosecutor. Quiaoit, on the other hand, would appear to
have had the support of then Representative Jose Yap of the Second Legislative
District of Tarlac.[3] On 30 June 1997, Quiaoit
emerged the victor when he was appointed by President Ramos to the coveted
office. Quiaoit received a certified
xerox copy of his appointment and, on 21 July 1997, took his oath of office
before Executive Judge Angel Parazo of the Regional Trial Court (Branch 65) of
Tarlac, Tarlac. On 23 July 1997,
Quiaoit assumed office and immediately informed the President, as well as the
Secretary of Justice and the Civil Service Commission, of that assumption. Bermudez refused to vacate the Office of Provincial
Prosecutor claiming that the original copy of Quiaoit’s appointment had not yet
been released by the Secretary of Justice.[4] Quiaoit, nonetheless,
performed the functions and duties of the Office of Provincial Prosecutor by
issuing office orders and memoranda, signing resolutions on preliminary
investigations, and filing several informations before the courts. Quiaoit had since been regularly receiving
the salary, RATA and other emoluments of the office.
On 17 September 1997, Bermudez and
Quiaoit were summoned to Manila by Justice Secretary Guingona. The three met at the Department of Justice
and, following the conference, Bermudez was ordered to wind up his cases until
15 October 1997 and to turn-over the contested office to Quiaoit the next day.
In his First Indorsement, dated 22
September 1997, for the Chief State prosecutor, Assistant Chief State
Prosecutor Nilo Mariano transmitted the original copy of Quiaoit’s appointment
to the Regional State Prosecutor Carlos de Leon, Region III, at San Fernando,
Pampanga. In turn, in his Second
Indorsement, dated 02 October 1997, Regional State Prosecutor de Leon forwarded
to Quiaoit said original copy of his appointment. On the basis of the transmittal letter of Regional State
Prosecutor de Leon, Quiaoit, as directed, again so assumed office on 16 October
1997. On even date, Bermudez was
detailed at the Office of the Regional State Prosecutor, Region III, in San
Fernando, Pampanga.
In the meantime, on 10 October
1997, Bermudez together with his co-petitioners Arturo Llobrera and Claudio
Dayaon, the Second Assistant Provincial Prosecutor and the Fourth Assistant
Provincial Prosecutor of Tarlac, respectively, filed with the Regional Trial
Court of Tarlac, a petition for prohibition and/or injunction, and mandamus,
with a prayer for the issuance of a writ of injunction/temporary restraining
order, against herein respondents, challenging the appointment of Quiaoit
primarily on the ground that the appointment lacks the recommendation of the
Secretary of Justice prescribed under the Revised Administrative Code of
1987. After hearing, the trial court
considered the petition submitted for resolution and, in due time, issued its
now assailed order dismissing the petition.
The subsequent move by petitioners to have the order reconsidered met
with a denial.
Hence, the instant recourse.
The core issue for consideration
is whether or not the absence of a recommendation of the Secretary of Justice
to the President can be held fatal to the appointment of respondent Conrado
Quiaoit. This question would, in turn,
pivot on the proper understanding of the provision of the Revised
Administrative Code of 1987 (Book IV, Title III, Chapter II, Section 9) to the
effect that-
“All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary.”
Petitioners
contend that an appointment of a provincial prosecutor mandatorily requires a
prior recommendation of the Secretary of Justice endorsing the intended appointment
citing, by analogy, the case of San Juan vs. CSC[5] where the Court held:
"x x x The DBM may appoint only from the list of qualified recommendees nominated by the Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.
The Provincial Budget Officer (PBO) is expected to synchronize his
work with DBM.”[6] (Emphasis supplied.)
Insisting
on the application of San Juan, petitioners call attention to the tenor of
Executive Order No. 112[7] -
“Section 1. All budget officers of provinces, cities and municipalities shall be appointed henceforth by the Minister of Budget and Management upon recommendation of the local chief executive concerned x x x.” –
that, they
claim, can be likened to the aforequoted provision of the Revised
Administrative Code of 1987.
Respondents argue differently.
The legislative intent is, of
course, primordial. There is no
hard-and-fast rule in ascertaining whether the language in a statute should be
considered mandatory or directory, and the application of a ruling in one
particular instance may not necessarily be apt in another[8] for each must be determined
on the basis of the specific law in issue and the peculiar circumstances
attendant to it. More often than not,
the problem, in the final analysis, is firmed up and addressed on a
case-to-case basis. The nature,
structure and aim of the law itself is often resorted to in looking at the
legislative intent. Generally, it is
said that if no consequential rights or liabilities depend on it and no injury
can result from ignoring it, and that the purpose of the legislature can be
accomplished in a manner other than that prescribed when substantially the same
results can be obtained, then the statute should be regarded merely as
directory, rather than as mandatory, in character.[9]
An “appointment” to a public
office is the unequivocal act of designating or selecting by one having the
authority therefor of an individual to discharge and perform the duties and
functions of an office or trust.[10] The appointment is deemed
complete once the last act required of the appointing authority has been
complied with and its acceptance thereafter by the appointee in order to render
it effective.[11] Appointment necessarily
calls for an exercise of discretion on the part of the appointing authority.[12] In Pamantasan ng Lungsod ng
Maynila vs. Intermediate Appellate Court,[13] reiterated in Flores vs.
Drilon,[14] this Court has held:
“The power to appoint is, in essence, discretionary. The appointing power has the right of choice
which he may exercise freely according to his judgment, deciding for himself
who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of
the appointing power x x x”[15]
Indeed, it
may rightly be said that the right of choice is the heart of the power to
appoint.[16] In the exercise of the
power of appointment, discretion is an integral part thereof.
When the Constitution[17] or the law[18] clothes the President with
the power to appoint a subordinate officer, such conferment must be understood
as necessarily carrying with it an ample discretion of whom to appoint. It should be here pertinent to state that
the President is the head of government whose authority includes the power of
control over all “executive departments, bureaus and offices.” Control means
the authority of an empowered officer to alter or modify, or even nullify or
set aside, what a subordinate officer has done in the performance of his
duties, as well as to substitute the judgment of the latter,[19] as and when the former
deems it to be appropriate. Expressed
in another way, the President has the power to assume directly the
functions of an executive department, bureau and office.[20] It can accordingly be
inferred therefrom that the President can interfere in the exercise of
discretion of officials under him or altogether ignore their recommendations.[21]
It is the considered view of the
Court, given the above disquisition, that the phrase “upon recommendation of
the Secretary,” found in Section 9, Chapter II, Title III, Book IV, of the
Revised Administrative Code, should be interpreted, as it is normally so
understood, to be a mere advise, exhortation or indorsement, which is
essentially persuasive in character and not binding or obligatory upon the
party to whom it is made.[22] The recommendation is here
nothing really more than advisory in nature.[23] The President, being the
head of the Executive Department, could very well disregard or do away with the
action of the departments, bureaus or offices even in the exercise of
discretionary authority, and in so opting, he cannot be said as having acted
beyond the scope of his authority.
The doctrine in San Juan, relied
upon by petitioners, is tangential.
While the tenor of the legal provision in Executive Order No. 112 has
some similarity with the provision in the 1987 Administrative Code in question,
it is to be pointed out, however, that San Juan,[24] in construing the law, has
distinctively given stress to the constitutional mandate on local autonomy;
thus:
“The issue before the Court is not limited to the validity of the appointment of one Provincial Budget Officer. The tug of war between the Secretary of Budget and Management and the Governor of the premier province of Rizal over a seemingly innocuous position involves the application of a most important constitutional policy and principle, that of local autonomy. We have to obey the clear mandate on local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in Malacañang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy.
“x x x x x x x x x
“When the Civil Service Commission interpreted the recommending
power of the Provincial Governor as purely directory, it went against the
letter and spirit of the constitutional provisions on local autonomy. If the DBM Secretary jealously hoards the
entirety of budgetary powers and ignores the right of local governments to
develop self-reliance and resoluteness in the handling of their own funds, the
goal of meaningful local autonomy is frustrated and set back.”[25]
The Court there has explained that
the President merely exercises general supervision over local government units
and local officials;[26] hence, in the appointment
of a Provincial Budget Officer, the executive department, through the Secretary
of Budget and Management, indeed had to share the questioned power with the
local government.
In the instant case, the
recommendation of the Secretary of Justice and the appointment of the President
are acts of the Executive Department itself, and there is no sharing of power
to speak of, the latter being deemed for all intents and purposes as being
merely an extension of the personality of the President.
WHEREFORE, the petition is DENIED. No costs.
SO ORDERED.
Melo, (Chairman), Panganiban,
Purisima, and Gonzaga-Reyes, JJ., concur.
[1] Per Judge Arsenio P. Adriano.
[2] Annex “D,” Petition, Rollo, p. 40.
[3] Memorandum of Appeal for
Petitioners-Appellants, pp. 14-15.
[4] Prior
to the released of the original copy of Quiaoit’s appointment, then Justice
Secretary Guingona wrote a letter addressed to then President Ramos which
reads:
“Dear Mr. President:
“This has reference to the appointment of Atty. Conrado T. Quiaoit as Prosecutor III (Provincial Prosecutor) of the Provincial Prosecution Office of Tarlac, Region III.
“It has been the practice in the appointment of prosecutors for the Office of the President to consult this Department on the most qualified candidate for the position on the basis of performance, length of service and rank. When the position of the Provincial Prosecutor of Tarlac became vacant, we have expressly recommended Prosecutor Oscar V. Bermudez to the position being the most qualified candidate based on the foregoing criteria. We are greatly concerned and disturbed therefore when that Office has appointed Atty. Quiaoit, without our comment or recommendation.
“We would like also to convey to the Office of the President
the adverse sentiments from the Office of the Provincial Prosecution Office of
Tarlac generated by the appointment of Atty. Quiaoit in a position paper a copy
of which is enclosed herewith.” (Rollo, p. 13.)
[5] 196 SCRA 69.
[6] At p. 79.
[7] Entitled, “Placing All Budget Officers of
Provinces, Cities and Municipalities under the Administrative Control and Technical
Supervision of the Ministry of Budget and Management”
[8] Sutherland Statutory Construction, Vol. 3, 5th ed., p. 8.
[9] Ruben Agpalo, Statutory Construction, 2nd
ed., p. 238, citing Miller vs. Lakewood Housing Co., 180 NE 700, 81 ALR
1239.
[10] See Isagani A. Cruz, Philippine Political
Law, 1993 edition, p. 187; Philippine Law Dictionary By F.B. Moreno, Third
Edition, p. 67; Black’s Law Dictionary, 6th edition, p. 99, citing In re
Nicholson’s Estate, 104 Colo. 561, 93 P. 2d 880, 884 citing Board of Education
of Boyle County vs. McChesney, 235 Ky. 692, 32 S.W. 2d 26, 27.
[11] See Aparri vs. Court of Appeals, 127
SCRA 231.
[12] In the words of Justice Malcolm an
“(a)ppointment to office is intrinsically an executive act involving the
exercise of discretion.” (Concepcion vs. Paredes, 42 Phil. 599.)
[13] 140 SCRA 22.
[14] 223 SCRA 568.
[15] At p. 579.
[16] Ibid., p. 579.
[17] Sec.
16. The President shall nominate and,
with the consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and consuls or
officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of
the Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission on Appointments
or until the next adjournment of the Congress.
(Phil. Constitution, Article VII.)
[18] SEC.
9. Provincial/City Prosecution Offices.
– The Provincial and City Fiscal’s Office established in each of the provinces
and cities pursuant to law, is retained and renamed Provincial/City Prosecution
Office. It shall be headed by a
Provincial Prosecutor or City Prosecutor, as the case may be, assisted by such
number of Assistant Provincial/City Prosecutors as fixed and/or authorized by
law. The position titles of Provincial
and City Fiscal and of Assistant Provincial and City Fiscal are hereby
abolished.
All provincial/city prosecution offices shall continue to discharge their functions under existing law.
All provincial and city prosecutors and their assistants
shall be appointed by the President upon the recommendation of the
Secretary. (Administrative Code of
1987, Book IV, Title III, Chapter 2.)
[19] Mondano vs. Silvosa, et al., 97
Phil. 143; Echeche vs. CA, 198 SCRA 577 citing Oliveros-Torre vs.
Bayot, 58 SCRA 272 and Ang-Angco vs. Castillo, 118 Phil. 1468.
[20] Pelaez vs. Auditor-General, 15 SCRA
569.
[21] Lacson-Magallanes Co., Inc. vs. Pano,
21 SCRA 895.
[22] Cuyegkeng vs. Cruz, 108 Phil. 1147.
[23] See Black’s Law Dictionary, 6th edition, p.
1272.
[24] San Juan vs. CSC, 196 SCRA 69.
[25] At pp. 75-78.
[26] Section 4, Article X of the Constitution
provides: “The President of the Philippines shall exercise general supervision
over local governments. Provinces with
respect to component cities and municipalities, and cities and municipalities
with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions.”