G.R. No. 139554 (Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael Simpao, Jr., and Freddie Garcia, petitioners, v. Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile Potenciano, and Doreen Fernandez, respondents)
G.R. No. 139565 (Baltazar N. Endriga, Ma. Paz D. Lagdameo, Patricia C. Sison, Irma Ponce-Enrile Potenciano, and Doreen Fernandez, petitioners, v. Armita B. Rufino, Zenaida R. Tantoco, Lorenzo Calma, Rafael Simpao, Jr., and Freddie Garcia, respondents.)
Promulgated:
July 21, 2006
x -------------------------------------------------------------------------------- x
DISSENTING OPINION
Tinga, J.:
The majority’s ruling is not as innocuous as it may seem. It is of monumental but disturbing consequence. It upsets the delicate balance ordained by our constitutional system, which reposes on the three equal branches of government different inherent functions augmented by specifically chartered duties. In one fell swoop, it expands executive power in unprecedented fashion while diminishing the inherent plenary power of Congress to make laws as explicitly guaranteed by the Constitution. It gives license to the President to disregard the laws enacted by Congress although it is the Chief Executive’s sworn constitutional duty to faithfully execute the laws of the land, an intolerable notion under the democratic order. With all due respect, I must dissent.
The
majority has voted to uphold the power of the President to appoint the members
of the Board of Trustees (CCP board) of the
The
petitioners in G.R. No. 139565 (Endriga Group) were members of the CCP board
who sat in such capacity beginning in 1995. Then President Ramos issued
appointment papers to the members of the Endriga Group in 1995, qualifying that
their appointment would extend only until
On
In main, the Endriga Group posited that they could not have been replaced by President Estrada as they had not yet completed their four-year term of office as provided in the CCP Charter. The Court of Appeals[3] agreed with the basic position of the Endriga Group, notwithstanding the proviso made by President Ramos in his appointment papers. The Court of Appeals compelled obeisance instead to Section 6 of the CCP Charter which reads:
Sec. 6. Board of Trustees. – The governing
powers and authority of the corporation shall be vested in, and exercised by, a
Board of eleven (11) trustees who shall serve without compensation.
(a) The trustees appointed by the President of the
(b) Vacancies in the Board of Trustees due to termination
of term, resignation, incapacity, death or other cause as may be provided in
the By-laws, shall be filled by election by a vote of a majority of the
trustees held at the next regular meeting following occurrence of such vacancy.
The elected trustee shall then hold office for a complete term of four years
unless sooner terminated by reason of resignation, incapacity, death or other
cause. Should only one trustee survive, the vacancies shall be filled by the
surviving trustee acting in consultation with the ranking officers of the
Center. Such officers shall be designated in the Center’s Code of By-Laws.
Should for any reason the Board be left entirely vacant, the same shall be
filled by the President of the
The CCP Charter clearly states that the trustees appointed by the President in 1966 shall elect the remaining trustees to complete the board, and such electees shall hold office for a period of four (4) years. Subsequent vacancies in the board shall be filled by the Board of Trustees, through a majority vote, with the new appointee serving for a four (4)-year term. The power to select the members of the Board of Trustees is always vested in the board, no matter the number of persons who are serving therein at a particular time, except when all the positions in the board without exception are vacant. It is only then that the President may exercise the power to appoint the members of the board, subject to the condition that the appointments be made in consultation with the ranking officers of the CCP.
The majority, reversing the Court of Appeals, holds this setup prescribed by Section 6 of the CCP Charter, unconstitutional. Two grounds are offered for this holding. First, Section 16,[5] Article VII of the Constitution (Appointments Clause) limits the authority of Congress to vest the power of appointment over lower-ranked officials only to “heads of departments, agencies, commissions or boards.” In the majority’s estimation, the CCP should be considered as a “board” for purposes of the Appointments Clause, and thus, only the chairperson of the CCP could be authorized by law to exercise the right to appoint.[6]
Second, the presidential power of control over the executive branch, as provided in Section 17,[7] Article VII of the Constitution (Executive Control Clause), grants the President control over the CCP. The authority of the CCP board of Trustees to fill vacancies in the Board renders the CCP a “self-perpetuating entity [outside] the control of the President,” and is thus unconstitutionally drawn.[8]
It
is not readily apparent from the ponencia whether it maintains that
executive control, as contemplated in the Constitution, empowers the President
to make all appointments of officers and officials within the executive branch.
If that were the position, such view is clearly inconsistent with the Appointments
Clause which categorically authorizes Congress to empower officials other than
the President to make such appointments, in the case of lower-ranked officials.
To sustain the expansive view that “executive control” extends to the power of
the President to make all appointments in the executive branch would render the
Appointments Clause inutile. It would then be senseless to acknowledge that
Congress has the right to authorize the heads of departments, agencies,
commissions or boards to appoint their junior officers, since executive control
would indubitably vest that right to the President anyway. It is nonetheless
cold comfort that the majority does not expressly frame such a view, and I hope
that the ponencia does not lay the groundwork for such a radical notion.
Notwithstanding, I prefer to delineate the critical issues in the following manner. The Appointments Clause, being complete in itself, is the sole constitutional provision governing the authority of the President to make appointments to the executive branch, as well as the authority of Congress to provide otherwise in certain instances. The Executive Control Clause does not extend to the presidential power of appointments. Thus, in ruling on whether or not the President or the CCP Board of Trustees has the power to appoint members of the board, it is the Appointments Clause alone that should govern.
At
the same time, due consideration of the Executive Control Clause is also
warranted in the present cases, but for a different purpose. It is clear from
the petitions that assailed also are the acts of President Ramos in limiting
below four (4) years the term of his appointees to the CCP board, and the
subsequent act of President Estrada in appointing new appointees to the board
despite the fact that the four(4)-year term of those persons who purportedly
vacated their seats had not yet expired. Thus, a second critical issue arises: whether
the holder of a statutory term of office in the executive branch may be removed
from office by the President on the basis of the power of executive control.
The
Power of Appointment in Relation to the CCP Board of Trustees
Constitutional authority to make appointments within the executive branch is governed solely by the Appointments Clause of the Constitution, which is broad enough to cover all possible appointment scenarios. The provision states:
SECTION 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 first sentence of the Appointments Clause enumerates the officers whom only the President may appoint, subject to the consent of the Commission of Appointments. There is no doubt that no official of the CCP, or any GOCC for that matter, is included in this first category of appointees.[9]
The second and third sentences must be examined together. The second sentence authorizes the President to appoint all other officers whose appointments are not otherwise provided for by law, or those whom he may be authorized to appoint by law. This authority must be appreciated with the third sentence, which authorizes Congress to vest the appointment of other officers lower in rank to the President, the courts, or in the heads of departments, agencies, commissions, or boards.
Thus, as regards the officials in the executive branch other than those enumerated in the first sentence of the Appointments Clause, or those who do not belong to the first category, the following valid scenarios are authorized: (1) the law may expressly authorize the President to make the appointment; (2) the law may expressly authorize the courts or the heads of departments, agencies, commissions or boards to appoint those officers lower in rank; (3) the law may remain silent on the power of appointment, thus enabling the President to make the appointment on the basis of the Appointments Clause itself. Implicitly, it can also be argued that other than the case of “other officers lower in rank,” Congress may authorize a person or entity other than the President to appoint all such other officers, or provide for a modality through which such appointment may be made. I am aware that this last point may be a source of controversy, yet for reasons I shall explain later, it is not an issue in the particular cases at bar and, hence, need not be settled for now.
From the same provision, the majority formulates two premises: that the CCP is considered a “board” or “Board” for purposes of the Appointments Clause,[10] and, that only the President or the chairperson of the CCP Board of Trustees, may be authorized by law to appoint officials of the CCP.[11] I respectfully disagree with both premises.
CCP an Agency under the
Appointments Clause
I submit that “boards,” as used in the Appointments Clause, does not pertain to the boards of directors of government or public corporations such as the CCP. Such GOCCs are properly considered as agencies which nonetheless fall within the same classification in the Appointments Clause.
The term “board” or “Board,”[12] as utilized in the administrative bureaucracy, may pertain to different entities performing different functions under different mandates. There are several prominent government agencies which use the nomenclature “Board,” such as the Monetary Board (MB), the Housing Land Use and Regulatory Board (HLURB), the Department of Agrarian Reform Adjudication Board (DARAB), the Movie and Television Review and Classification Board (MTRCB), and the former Energy Regulatory Board, among others. Collegial bodies such as the Boards just mentioned have long formed part of the executive superstructure, along with departments, agencies and commissions. Hence, it came as no surprise that all four (4) entities were lumped together in the Appointments Clause.
However, the board of directors or board of trustees of a government corporation should be appreciated in a different context. Unlike the Boards enumerated above, the board of directors/trustees does not constitute a unit that operates by itself as an agency of the government. Instead, such board of directors/trustees, as a general rule, operates as the body that exercises the corporate powers of the government corporations concerned. The Constitution itself authorizes the creation of government-owned or controlled corporations through special charters,[13] and the CCP was established as a public corporation through Presidential Decree No. 15, its charter.
The majority believes differently, stating that since the CCP is governed by a board, it is not an agency but a Board for purposes of the Appointments Clause. The majority explains this away by merely noting that there is such an entity as the CCP Board of Trustees. The bother of explaining why the CCP is a board, as distinguished from a department, agency or commission is altogether avoided. Instead, it is assumed as self-evident that since there is a CCP Board of Trustees, the CCP is consequently a board.
For one, the CCP itself may be considered as an agency since under the Administrative Code, an agency includes a government-owned or controlled corporation.[14] The term “Board,” used in a general sense, has been defined as a representative body organized to perform a trust or to execute official or representative functions,[15] or a group of persons with managerial, supervisory or investigatory functions.[16] There is no doubt that sovereign executive functions can be delegated through duly constituted Boards, such as the HLURB or MTRCB, and it is commonly understood that the Boards in those cases refer to a group of individuals vested with the exercise of governmental functions. However, boards do not normally have independent juridical personality, unlike corporations.
Indeed, whatever governmental functions are exercised by the members of the CCP Board of Trustees are not derived from their formation as a board but from its installation by charter as the governing authority of a GOCC. The Board of Trustees is not vested with any sort of independent juridical personality under the CCP charter; such personality is imbued instead in the CCP itself. The Board of Trustees may be the governing authority of the CCP, but it is the CCP itself as the legislative creation that is tasked to perform the mandate of its charter. The latest performances of the prima ballerinas are sponsored and presented not by the panel known as the “CCP Board of Trustees,” but by the entity that is the CCP itself.
Assuming for the nonce that there is ambiguity in how the term “board” in the Appointments Clause should be construed, the rule is that the correct meaning may be made clear and specific by considering the company of words in which the term is found or with which it is associated.[17] Departments, agencies, commissions or boards (Boards) all pertain to segregate units within the executive branch performing with particular competence unique and specialized functions. Departments, agencies, commissions or boards (Boards) refer to offices of different nomenclatures within the executive department, each performing functions that are independent of each other.
Furthermore, that the use of the disjunctive term “or” in the enumeration “departments, agencies, commissions or boards (Boards)” signifies that these four entities, though lumped together, are under constitutional contemplation disassociated or distinct from each other.[18] Given the degree of fluidity within administrative practice, it is standard that a particular government office would create subdivided groupings to which functions would be delegated. Considering the paucity of available terms, these groupings could very well be named as “departments,” “agencies,” “commissions,” or “boards” (Boards). Thus, Agency X could have an Accounting Department, a Board of Merit Review, and Employee Health and Welfare Commission. With the majority’s reasoning, these three aggrupments would fall within the same constitutional class under the Appointments Clause as Agency X itself. Worse, the appointing power of the head of the Accounting Department would be treated separately and accorded equal constitutional weight as that of the head of Agency X.
The example may border on the absurd, but that is the implication of the majority’s holding that the CCP Board of Trustees is considered as a “Board” for purposes of the Appointments Clause, even if the CCP itself is properly an agency. The enumeration “departments, agencies, commissions or boards (Boards),” highlighted by the use of the disjunctive word “or” positively implies that the
items are treated singly, and not one at the same time.[19] The CCP board cannot be disassociated from the CCP itself for the former was constituted as the governing authority of the CCP and not as an independent entity on its own.
In short, within the enumeration the CCP is more akin to an “agency” rather than a “Board.” Under the Appointments Clause, agencies and Boards are accorded similar treatment and in both cases, Congress may vest the power to appoint officers in the “head” of such agency or Board. In CCP’s case, the appointment power may be delegated to the “head” of the CCP.
Board of
Trustees is the Head of the CCP
Who then is the “head” of the CCP? The majority suggests that it is the Chairperson of the CCP board. I respectfully differ but maintain that it is the CCP board itself that is the “head” of the CCP or acts as such head.
The majority’s conclusion is predicated on the premise that the CCP should be classified as a board (Board) and not an agency. However, as I pointed out, the CCP as a GOCC should instead be considered as an agency. Indeed, the CCP Board of Trustees cannot exercise any function or power outside the context of its mandate as the governing authority of the CCP.
Certainly, the answer to the query as to who or which is the head of the CCP should be discerned primarily from its charter.
As earlier stated, Section 6 of the CCP Charter expressly provides that “the governing powers and authority of the corporation shall be vested in, and exercised by, a Board [of] Trustees.”[20] Even the Rufino Group concedes that the CCP Board of Trustees itself is the “head” of the CCP, owing to the fact that is the governing body of the CCP.[21]
Section 8 of the CCP Charter provides the Chairperson with a power of appointment which nonetheless is limited, incomplete, and subject to confirmation by the CCP Board.
Sec. 8. Appointment of Personnel. – The
Chairman, with the confirmation of the Board, shall have the power to
appoint all officers, staff and personnel of the Center with such compensation
as may be fixed by the Board, who shall be residents of the
The Revised Rules and Regulations of the CCP provides the Chairperson with additional powers not found in the charter, particularly the power to remove and discipline all officers and personnel of the CCP. Section 3 of the Revised Rules states:
Sec. 3. Chairman of the Board. – The Board of Trustees
shall elect a Chairman who must be one of its members, and who shall be the
presiding officer of the Board of Trustees, with power among others, to
appoint, within the compensation fixed by the Board, and subject to
confirmation of the Board, remove, discipline all officers and personnel of
the Center, and to do such other acts and exercise such other powers as may
be determined by the Board of Trustees. The Chairman shall perform his
duties and exercise his powers as such until such time as the Board of
Trustees, by a majority vote, shall elect another Chairman. The Chairman
shall be concurrently President unless the Board otherwise elects another
President.[23]
Even as these Revised Rules and Regulations emanate from the CCP Board itself, the limitations contained therein on the powers to be exercised by the Chairperson highlight, rather than diminish, the stature of the board as the governing power and authority over the CCP.
This relationship between the CCP Chairperson and the CCP board is aligned with the theory and practice of corporations. Generally, corporate acts and powers are exercised by the board of directors of stock corporations or the board of trustees of non-stock corporations.[24] Such corporate powers may be delegated by charter or by-laws, or even by the board, to particular corporate officers. However, the authority of officers to bind the corporation is usually not considered inherent in their office, but is derived from law, the corporate by-laws, or by delegation from the board, either expressly or
impliedly by habit, custom or acquiescence in the general course of
business.[25]
In the case of the CCP, whatever powers are delegated to the CCP Chairperson, even if incidental to the exercise of the corporate powers of the CCP, are still subject to confirmation by the Board of Trustees. The Chairperson cannot by himself/herself enter into contractual relations unless previously authorized by the Board of Trustees. On the other hand, the Board may, without prior authority from any other person or entity, enter into such contractual relations. Even those powers expressly granted to the Chairperson, such as appointment of officers, staff and personnel, are qualified with the phrase, “subject to/with confirmation of the Board.”
Evidently, the powers of the CCP Chairperson are especially circumscribed while the Board of Trustees is vested with latitude to overturn the discretion of the CCP Chairperson.
In short, for all the prestige that comes with chairing the CCP board, the Chairperson has limited powers, and his/her acts are subject to confirmation, if not reversal, by the board. The Chairperson is not the final authority as he/she lacks the final say within the CCP system itself. It is the Board of Trustees that is the duly constituted governing authority of the CCP, the statutory delegate vested with the last word over the acts of the CCP itself.
I feel that the majority has succumbed to the temptation in regarding the term “head” as exclusively referring to a singular personality. Such a reading, I respectfully submit, is unduly formalistic. The proper construction of “head” should be functional in approach, focusing on the entity that exercises the actual governing authority rather than searching for a single individual who could be deemed by reason of title as representative of the CCP. For the objective of the Appointments Clause is to allow the power to appoint to be exercised by the final governing authority of a department, agency, commission or board (Board) over its junior officers. It would be patently absurd to insist that the constitutional intent is to authorize the repose of such appointing power instead to an individual officer whose acts are still subject to confirmation by a higher authority within that office. Interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et absurdum.[26]
Thus, pursuant to the Appointments Clause, Congress may vest on the CCP board, as the head of the CCP, the power to appoint officers of the CCP. The controversy in this case lies though in the appointment of the members of the Board of Trustees themselves, and not the particular officers of the CCP. Thus, the question is this: Can the Board of Trustees be validly empowered by law to appoint its own members, as it is so under the CCP Charter?
CCP Board
Over the Individual Trustees
As stated earlier, the Rufino Group concedes that it is the CCP board that is the “head” of the CCP.[27] At the same time, it argues that the law could not validly give unto the members of the CCP board the authority to appoint their fellow trustees, for the latter would be officers of equal rank, and not lower rank.[28] The majority adopts this latter position of the Rufino Group.[29]
I respectfully submit that the CCP board may validly appoint its own trustees, as provided for in Section 6(b) of the CCP Charter, and under the authority of Section 16, Article VII of the Constitution. In doing so, I recognize that the Board of Trustees as a body, the head of the CCP, remains superior in rank than any particular member of the board.
Certainly, there can be no argument that an individual member of the CCP board is an entity separate from the board itself, and that he, the board member, remains under the governing authority of the CCP board. Generally speaking, the term “inferior officer” connotes a relationship with some higher ranking officer or officers.[30] A board member by himself/herself cannot speak for or act in behalf of the board as a whole, unless the board authorizes that member to do so. When the Board of Trustees elects to fill a vacancy in the board, it cannot be said that it exercises the power appointment to a co-equal office. As stated before, the Board of Trustees is an entity separate from and superior to any one of its members.
Under Section 6(d) of the CCP Charter, “majority of the Trustees holding office shall constitute a quorum to do business.” The CCP board is thus able to operate and exercise its corporate powers irrespective of the number of persons sitting on the board at a particular time. In fact, it is possible that at a given time, the entire CCP board would consist of only one member, who until such time the vacancies are filled, wields the powers of the Board of Trustees. This possibility is precisely recognized under Section 6(b) of the CCP Charter, which authorizes the single remaining board member to fill the remaining vacancies in the board. Unusual as it may seem, it precisely aligns with the theories behind corporate personality. The remaining board member is authorized to fill the remaining vacancies for at that moment said member is the Board of Trustees, the governing authority of the CCP.
The Court has recognized that collective or collegiate bodies outweigh or outrank the individual members, even if the member is the presiding officer of the body. In GMCR, Inc. v. Bell Telecommunications,[31] the Court upheld a ruling of the Court of Appeals invalidating an order and other issuances signed solely by the Chairman of the National Telecommunications Commission (NTC). The Chairman had maintained that he had the exclusive authority to sign, validate and promulgate all orders, resolutions and decisions of the NTC. The Court disagreed, holding that the NTC is a collegial body “requiring a majority vote out of the three members of the commission in order to validly decide a case or any incident therein.”[32] It was further noted that the NTC Chairman “is not the [NTC]. He alone does not speak for and in behalf of the NTC. The NTC acts through a three-man body, and the three members of the commission each has one vote to cast in every deliberation concerning a case or any incident therein that is subject to the jurisdiction of the NTC.”[33]
Even the collegial bodies established under the Constitution exercise their powers collectively, and not through their presiding officer. Thus, it is the Supreme Court, not the Chief Justice, which has the power to appoint all officials and employees of the judiciary.[34] The Commission on Elections (COMELEC) and the Commission on Audit (COA) exercise their constitutional powers as a body, and not through their Chairpersons.[35]
Even if not denominated as such, the
CCP board takes on the same attributes as any collegial body, and could be
recognized as such in the same way that the Court has recognized the Integrated
Bar of the Philippines Board of Governors as a collegial body. The CCP board
makes decisions as a collective body during its regular
meetings, presumably after deliberation, the exchange of views and ideas, and
the concurrence of the required majority vote.[36]
Still, the majority’s theory that Section 6 of the CCP Charter is unconstitutional is anchored in part on the assumed predicate that it is the only the Chairperson of the CCP board, as “head” of the CCP, who may be empowered by law to appoint the members of the CCP board. If this premise is adopted, it would operate as the rule not only in the CCP, but in all GOCCs. Following the majority, the following kinds of appointment would consequently be unconstitutional:
1) Appointments to the Board of
Directors/Trustees of any GOCC by authorities other than the President of the
2) Appointments of other officers
and officials of GOCCs by authorities other than the President of the
3) Ex-officio appointments to the boards of GOCCs. The charters of several GOCCs mandate that certain persons sit in the Board of Directors/Trustees by reason of their office, or in an ex-officio capacity. Such ex-officio appointments are not expressly provided for in the Constitution. Following the majority’s literalist reading of the Appointments Clause, ex-officio appointments are similarly invalid as they do not derive from the exclusive appointment power of the President or the chairperson of the board.
Again, with all due respect, the rationale is predicated on a flawed interpretation of the terms “head” and “board” (Board) as used in Section 16, Article VII, a reading that is alien to the common understanding of corporate personality, as well as actual corporate practice. On the contrary, the procedure outlined in Section 6 of the CCP Charter, vesting in the CCP Board of Trustees the authority to appoint the members of the board, is congruent with constitutional order. It should be stressed anew that the CCP Board itself is the head of the CCP and that any individual member of the board is lower in rank than the board itself.
It
is de rigueur for directors of a
corporation to fill vacancies in their own Board where such power is conferred
upon them by statute or charter or by by-law.[37]
Modern statutes typically provide that vacancies in the Board, regardless of
the cause, may be filled up by the Board itself, side by side with an identical
power vested in the shareholders.[38] Among them is the U.S. Model Corporation
Business Act of 1984 which acknowledges that vacancies in the board of
directors may be properly filled by the Board itself.[39] The CCP precisely has that power conferred
to it by statute, the CCP charter that is.
Perhaps this question may arise: if the CCP board, as head of the CCP, may be legally authorized to appoint its own members, they being officers lower in rank than the board, who then may appoint the CCP board itself, as distinguished from individual vacancies therein? It should be noted though that it is settled rule that the term “appointment” is in law equivalent to “filling a vacancy.”[40] A vacancy exists when there is no person lawfully authorized to assume and exercise at present the duties of the office.[41] Accordingly the appointment power cannot be validly exercised unless there is a vacancy to be filled. In the case of the CCP, its charter provides that the Board of Trustees subsists even if there is only one remaining board member left.[42] Hence, the CCP board can only be considered as truly vacant if there is not even one member left sitting on the board. In that case, the CCP Charter authorizes the President to appoint the new CCP board to replace the board that no longer exists,[43] by filling the vacancies in the board.
Yet pursuant to the CCP Charter, it still is the President that appoints the Board of Trustees when such board is vacant. The statutory impediment to such appointing authority is the recognition of very limited circumstances under which the CCP board may be considered as truly vacant.
During deliberations on these petitions, some distress was raised over the prospect that in case only one person remained on the CCP Board of Trustees, that one person is empowered to appoint the other members of the Board. Perhaps the notion may strike as counterintuitive, yet it is perfectly valid under legal consideration considering that this sole remaining member stands as the Board itself, and not just an individual member thereof. This setup adheres to sound theory that a Board of Directors/Trustees retains collective force, no matter the number of persons sitting thereon, so long as the quorum requirements are satisfied.
Indeed,
the idea of a one-person board of directors is hardly a flight of whimsy under
modern corporation law. Consider the
Our
own Corporation Code does not permit one-person Board of Directors for private
corporations,[47] yet it
concedes that corporations created by special laws or charters are governed
primarily by the provisions of the charter creating them.[48]
The determination of the quorum requirement for chartered corporations is
exclusively the prerogative of the legislature, which can very well impose a
one-person board of directors or, as in the case of CCP, permit a situation
whereby a lone remaining director would be empowered to act as the board.
The
majority states that this statutory setup of the CCP “makes [it] a
self-perpetuating entity.” But the CCP is really no different from private
corporations whose boards of directors are, under the Corporation Code,
permitted to fill vacancies in the Board themselves for as long as the remainder of the board still constitute a quorum.[49] Considering
the clear legislative intent to accord the CCP with a significant degree of
independence, with its chartered guarantee of “autonomy of policy and operation,”[50]
the notion should give no offense at all. Yet even if there is wisdom or cause
in preventing the “self-perpetuation” of the CCP Board, the solution lies in
legislative amendment. The majority cannot supplant legislative prerogatives by
merely doing away with provisions of law that meet its aversion. Moreover,
short of amending the CCP Charter there are enough anti-graft laws, government
audit controls and other administrative safeguards to check abuse in office and
ensure accountable governance.
My own conclusion is that the means prescribed by the CCP Charter in the appointment of the members of the CCP board is in accordance with the Appointments Clause, specifically the provision therein that authorizes Congress to empower the President, the courts and the heads of departments, agencies, commissions or boards (Boards) to appoint officers of lower rank. The CCP is an agency, not a Board, and its head is its Board of Trustees. The CCP board is superior in rank than any of its particular members, and it may thus be authorized by law to fill vacancies by appointing new members of the board. Should the CCP board be totally vacant, owing to the fact that no person sits on the board at a given time, then the President is authorized by law to fill the vacant CCP board by appointment.
While the members of the Endriga Group were “appointed” by President Ramos, who had no authority to do so, it is also uncontested that the Endriga Group were subsequently elected by the CCP board to sit on the Board. For that reason, not their “appointment” by President Ramos, they could be deemed as having validly assumed their office upon their election to the board in 1995, for the statutory term of four (4) years.
Executive Control and Statutory Restrictions Thereon
There is an even more disturbing
implication to the present ruling which the majority barely touches upon. By
ruling against the Endriga Group, and sanctioning their replacement by
President Estrada even though their statutory term had yet to expire, the
majority in effect has ruled that the President may remove officials whose
terms have been fixed by law even prior to the cessation of the terms in
office. The legal rationale for this precipitate new rule is not precisely
explained. Pointedly though, the majority refers to the power of the President
of executive control to bolster its conclusion, characterizing such power as
“another constitutional impediment to the implementation of Section 6(b) and
(c)” of the CCP Charter.
The power of the President to maintain executive control over executive departments, bureaus and offices is constitutionally mandated by the Executive Control Clause.[51] Yet as earlier stressed, the power of the President to make appointments is governed by a different provision, the Appointments Clause which is complete by itself. If executive control is extended to bear on the power of the President to make appointments in the executive branch by further expanding it, then the Appointments Clause would be rendered useless. Clearly, the Constitution authorizes Congress to vest the power to appoint lower-ranked officials to the heads of departments, agencies, commissions or boards, (Boards). To insist that such power of appointment so vested in an agency head is nonetheless circumscribed by executive control would render the provision nugatory.
Yet,
may executive control be utilized to justify the removal of public officers
within the executive department notwithstanding statutory restrictions thereon,
such as the prescription of a fixed term of office? To declare that it does would be equivalent to
saying that executive control authorizes the President to violate the laws passed
by Congress. And that is not what the Constitution says.
The Executive Control Clause, which enshrines the presidential power of executive control, actually prescribes two (2) functions to the President.
Sec. 17. The President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
While the majority understandably lays emphasis on the first sentence of the Executive Control Clause, the second sentence is of equal importance. It emphasizes the cardinal principle that the President is not above the laws enacted by Congress and is obliged to obey and execute these laws. The duty of faithful execution of laws is enshrined not only in the Constitution, but also in the oath of office of the President and Vice-President.[52]
It is clear that the twin duties prescribed under the Executive Control Clause are of equal value. At very least, they should be construed in harmony, not antagonism, to each other, so that the power of control that the President may exercise over executive departments, bureaus and offices should still stay within the ambit of faithful execution of the Constitution and the laws of the land which the Constitution itself ordains.
I submit that the members of the CCP board are shielded by law from arbitrary removal by the President, even if is sought to be justified under the aegis of executive control. The traditional view that “the power of removal of executive officers [is] incident to the power of appointment”[53] has since been severely undercut by the U.S. Supreme Court,[54] and is of limited application in this jurisdiction in light of the constitutional guarantee to the security of tenure of employees in the civil service.[55] The notion that executive control authorizes the President to remove the members of the CCP board at his pleasure contravenes not only the CCP Charter but the Constitution itself, not to mention our civil service laws.
CCP Embraced
Under the Civil Service
Section 2(1), Article IX-B of the Constitution states that “[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government owned or controlled corporations with original charters”. It appears to have been the deliberate intent of the framers of the 1987 Constitution, in specifying the phrase “with original charters,” to exclude from civil service coverage those GOCCs without original charters, meaning those incorporated under the general corporation law.[56] Yet undoubtedly, the CCP was created through an original charter, and is hence covered by the civil service by mandate of the Constitution. This point has significant impact on the resolution of this case.
It can be advanced that Ang-Angco v. Castillo[57] settles the question in favor of the Endriga Group. In that case, President Garcia, through his Executive Secretary, rendered a ruling finding a Collector of Customs guilty of prejudicial conduct and considering him “resigned effective from the date of notice.”[58] The action was justified by virtue of the President’s power of control over all executive departments, bureaus and offices as provided for in the 1935 Constitution. Ang-Angco countered that the Civil Service Act of 1959, a legislative enactment, vests in the Commissioner of Civil Service the original and exclusive jurisdiction to decide administrative cases against officers and employees in the classified service such as himself; and that his subsequent removal by order of the President violated the Civil Service Act. The Court agreed with Ang-angco, holding that such “law which governs the action to be taken against officers and employees in the classified civil service is binding upon the President.”[59]
The Court explained why the power of executive control could not supersede a statutory enactment such as the Civil Service Act of 1959:
Let us now take up the power of control given to the
President by the Constitution over all officers and employees in the executive
department which is now invoked by respondents as justification to override the
specific provisions of the Civil Service Act. This power of control is couched
in general terms for it does not set in specific manner its extent and scope.
Yes, this Court in the case of Hebron vs. Reyes, supra, had already occasion to
interpret the extent of such power to mean "the power of an officer to
alter or modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the former for
that of the latter" , to distinguish it from the power of general
supervision over municipal government, but the decision does not go to the
extent of including the power to remove an officer or employee in the executive
department. Apparently, the power merely applies to the exercise of control
over the acts of the subordinate and not over the actor or agent himself of the
act. It only means that the President may set aside the judgment or action
taken by a subordinate in the performance of his duties.[60]
xxx
Further, the Court in Ang-Angco chose to avoid the ungainly clash between the constitutional power of executive control and the constitutional guarantee of security of tenure to those in the civil service, thus:
[T]he strongest argument against the theory of
respondents is that it would entirely nullify and set at naught the beneficient
purpose of the whole civil service system implanted in this Jurisdiction which
is to give stability to the tenure of office of those who belong to the
classified service in derogation of the provision of our Constitution which
provides that "No officer or employee in the civil service shall be
removed or suspended except for cause as provided by law" (Section 4,
Article XII, Constitution). Here, we have two provisions of our Constitution
which are apparently in conflict, the power of control by the President
embodied in Section 10 (1), Article VII, and the protection extended to those
who are in the civil service of our government embodied in Section 4, Article
XII. It is our duty to reconcile and harmonize these conflicting provisions in
a manner that may be given to both full force and effect and the only logical,
practical and rational way is to interpret them in the manner we do it in this
decision. As this Court has aptly said in the case of Lacson vs. Romero:
". . . To hold that civil service officials
hold their office at the will of the appointing power subject to removal or
forced transfer at any time, would demoralize and undermine and eventually
destroy the whole Civil Service System and structure. The country would
then go back to the days of the old Jacksonian Spoils System under which a
victorious Chief Executive, after the elections could if so minded, sweep out
of office, civil service employees differing in political color or affiliation
from him, and sweep in his political followers and adherents, especially those
who have given him help, political or otherwise." (Lacson vs. Romero, 84
Phil., 740, 754)[61]
At the same time, the Court considered the difference between the power of control exercised by President Garcia over his direct appointees vis-ŕ-vis that over employees belonging to the classified service.
There
is some point in the argument that the power of control of the President may
extend to the power to investigate, suspend or remove officers and employees
who belong to the executive department if they are presidential appointees or
do not belong to the classified service for such can be justified under the
principle that the power to remove is inherent in the power to appoint (Lacson
vs. Romero, supra), but not with regard to those officers and employees who
belong to the classified service for as to them that inherent power cannot be
exercised. This is in line with the provision of our Constitution which says
that "the Congress may by law vest the appointment of the inferior
officers, in the President alone, in the courts, or in heads of
department" (Article VII, Section 10 (3), Constitution). With regard to
these officers whose appointments are vested on heads of departments, Congress
has provided by law for a procedure for their removal precisely in view of this
constitutional authority.[62]
Evidently, Ang-Angco lays the precedent for distinguishing between officials whose tenure are protected under the civil service law, and those who enjoy no such statutory protection. The 1987 Constitution likewise makes it explicit that GOCCs with original charters such as the CCP are embraced under the civil service. Reference is thus necessary to the provisions of the present civil service law, particularly the Administrative Code of 1987.
The Administrative Code restates that GOCCs with original charters are within the scope of the civil service.[63] It further classifies positions in the civil service into career service and non-career service.[64] Generally, personnel of GOCCs are classified as career service, provided that they do not fall under the non-career service. On the other hand, the Administrative Code provides that non-career service employees under the Administrative Code are characterized by:
The Non-Career Service shall be characterized by (1)
entrance on bases other than those of the usual tests of merit and fitness
utilized for the career service; and (2) tenure which is limited to a period
specified by law, or which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to the duration of a
particular project for which purpose employment was made.
Included in the non-career service are:
1. Elective
officials and their personal or confidential staff;
2. Secretaries
and other officials of Cabinet rank who hold their positions at the pleasure of
the President and their personal confidential staff(s);
3. Chairman
and Members of Commissions and boards with fixed terms of office and their
personal or confidential staff;
4. Contractual
personnel or those whose employment in the government is in accordance with a
special contract to undertake a specific work or job requiring special or
technical skills not available in the employing agency, to be accomplished
within a specific period, which in no case shall exceed one year and performs
or accomplishes the specific work or job, under his own responsibility with a
minimum of direction and supervision from the hiring agency;
5. Emergency
and seasonal personnel.[65]
Since the members of the CCP board are appointed to a fixed tenure, the four (4)-year period specified by the CCP Charter, they may be properly considered as non-career service. Yet, even if these members fall within non-career service, their right to security of tenure is guaranteed both by the Constitution and by law.
Section
2. xxx
(3) No officer or employee of the civil service shall
be removed or suspended except for cause provided by law.[66]
xxx
Sec. 46. Discipline: General Provisions. – (a) No
officer or employee in the Civil Service shall be suspended or dismissed except
for cause as provided by law and after due process.[67]
What are thus the implications of
the constitutionally guaranteed right to security of tenure to non-career
service officials of GOCCs with original charter, particularly those whose
appointments are for a fixed term? Simply put, these officials cannot be
removed from office before the expiration of their term without cause, or for
causes other than those specified by either the GOCC’s
charter, the Administrative Code, or other relevant civil service laws.
Otherwise, their removal is unconstitutional.
An appointing power cannot arbitrarily remove an officer if the tenure is fixed by law, or if the officer is appointed to hold during the pleasure of some officer or board other than that appointing him.[68] In the absence of any provision for summary removal, an individual appointed to a post for a fixed term may be removed prior to the term’s expiration only for cause. It is the fixity of the term that destroys the power of removal at pleasure.[69]
Under the CCP Charter, the term of a trustee may be terminated “due to termination of term, resignation, incapacity, death or other cause as may be provided in the By-laws.”[70] These are the causes by law which may cause the dismissal of a member of the CCP board. In this case, the right of the Rufino Group to sit on the CCP board is premised on the claim that the members of the Endriga Group vacated their seats before the expiration of the four (4)-year term owing to the conditionalities made by President Ramos to their appointment. I have already pointed out that President Ramos did not have the authority to appoint the Endriga Group, but that they still were validly elected to the Board upon vote by the CCP board. Evidently, the conditionality restricting the Endriga Group to serve for a period less than the statutory term of four (4) years is invalid, whether or not it was attached to a valid appointing authority.
Clearly then, the power of the President to remove appointed officials of GOCCs with original charters, grounded as it could be in the power of “executive control” in the Constitution, is circumscribed by another constitutional provision. There is no showing that the Endriga Group was validly removed for legal cause before the expiration of their four (4)-year term. Hence, their removal is unconstitutional, as is the appointment of the Rufino Group to fill seats to the CCP board that had not yet become vacant.
CCP Governed
by its Statutory Charter
Special considerations must likewise be appreciated owing to the fact that the CCP is a GOCC with an original charter. The Constitution authorizes the creation or establishment of GOCCs with original charters.[71] Section 6 of the Corporation Code states that “[c]orporations created by special laws or charters shall be governed primarily by the provisions of the special law or charter creating them or applicable to them.”[72]
Obviously, since the CCP Charter mandates a four (4)-year term for the members of the CCP board, such condition is binding as a law governing the CCP. Hence, any measure diminishing a duly elected trustee’s right to serve out the four (4)-year term solely on the basis of the President’s discretion or pleasure runs contrary to law. This is a simple way to look at the issue, and its starkness does not detract from its inherent validity. Still, a deeper examination into the question supports the same conclusion.
There is no question that a GOCC with original charter falls within the executive department, hence generally subject to executive control. At the same time, the fact that its creation is sourced from legislative will should give cause for pause. GOCCs may be created by the State either through the legislative route—the enactment of its original charter, or the executive route—its incorporation with the Securities and Exchange Commission. The discretion to incorporate unchartered government units falls solely with the executive branch, but the discretion in chartering GOCCs is purely legislative. In theory, a chartered GOCC can come into being even against the will of the Chief Executive, as is done if Congress overrides an executive veto of a bill chartering a particular GOCC.
Our laws similarly sustain the theoretical underpinning that a chartered GOCC is a creature of the legislative branch of government, even as it falls within the executive branch. As noted earlier, Section 6 of the Corporation Code states that “[c]orporations created by special laws or charters shall be governed primarily by the provisions of the special law or charter creating them or applicable to them”[73] Thus, it is Congress, and not the executive branch, which determines a chartered GOCC’s corporate structure, purposes and functions. This basic point should be beyond controversy. Yet, the majority implies that Congress cannot limit or curtail the President’s power of control over the Executive branch, and from that context, declares that a law authorizing the CCP Board of Trustees to appoint its own members runs afoul with the President’s power of control. Evidently, there is a looming clash between the prerogative of the President to exercise control over the executive branch, and the prerogative of Congress to dictate through legislation the metes and bounds of a government corporation with original charter.
The scope of the potential controversy could also extend not only to GOCCs with original charters, but also to other public offices created by law. Outside of those offices specifically created by the Constitution itself, the creation and definition of the bureaucracy that constitutes the executive branch of government is an incident of the legislative power to make laws. The power to create public offices is inherently legislative,[74] and generally includes the power to modify or abolish it.[75]
Laws that create public offices or GOCCs are no different from other statutes in that they are all binding on the Chief Executive. Indeed, while Congress is vested with the power to enact laws, the President executes the law, executive power generally defined as the power to enforce and administer the laws.[76] The corresponding task of the Chief Executive is to see that every government office is managed and maintained properly by the persons in charge of it in accordance with pertinent laws and regulations. Corollary to these powers is the power to promulgate rules and issuances that would ensure a more efficient management of the executive branch, for so long as such issuances are not contrary to law.[77]
Since the creation of public offices involves an inherently legislative power, it necessarily follows that the particular characteristics of the public office, including eligibility requirements and the nature and length of the term in office, are also for legislative determination. Hence, laws creating public offices generally prescribe the necessary qualifications for appointment to the public office and the length of their terms. The wisdom of such matters is left up to the legislative branch. At the same time, the power of appointment is executive in character, and the choice of whom to appoint is within the discretion of the executive branch of government. This setup aligns with traditional notions of checks and balances — the choice whom to appoint resting with the executive branch, but proscribed by the standards enacted by the legislative. Persons to be appointed to a public office should possess the prescribed qualifications as may be mandated by Congress.
The same setup governs the removal of officers from public office. The power to remove a public officer is again executive in nature, but also subject to limitations as may be provided by law. Ordinarily, where an office is created by statute, it is wholly within the power of Congress, its legislative power extends to the subject of regulating removals from the office.[78]
Even the very definition of “executive control” under the Administrative Code concedes that the general definition of control may yield to a different prescription under a specific law governing particular agencies.
SECTION 38. Definition
of Administrative Relationships. — Unless otherwise expressly stated in the
Code or in other laws defining the special relationships of particular
agencies, administrative relationships shall be categorized and defined as
follows:
(1) Supervision
and Control. — Supervision and control shall include authority to act
directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts;
review, approve, reverse or modify acts and decisions of subordinate officials
or units; determine priorities in the execution of plans and programs. Unless
a different meaning is explicitly provided in the specific law governing the
relationship of particular agencies the word "control" shall
encompass supervision and control as defined in this paragraph.[79]
The charters of GOCCs are specific laws with specific application to the GOCCs they govern. The Administrative Code itself affirms that “control,” as defined by a particular charter, supersedes the general definition under the Code with respect to the GOCC governed by the charter. This concession is recognition of the primacy of legislative enactments in the constitution and definition of public offices within the executive branch of government.
The Authority of
Congress to Impose Limitations
On the Exercise of
Executive Control
There is another worrisome implication in the majority’s reliance on executive control. It connotes that the legislative branch of government has no power to legislate any form of controls on executive action, thus effectively authorizing the President to ignore the laws of Congress. This significant diminution of the plenary power of the legislature to make laws guts the power of Congress to check and balance the executive branch of government.
The duty of the President “to faithfully execute the laws of the land” places the Chief Executive under the rule of law.[80] The President cannot refuse to carry out a law for the simple reason that in his/her judgment it will not be beneficial to the people.[81] Indeed, the exercise of every aspect of executive power, whether residual, express, or delegated, is governed by one principle beyond compromise—that such powers be in accordance with law. Executive control, taken to its furthest extreme that it warrants the unchecked exercise of executive power, can be used to justify the President or his/her subalterns in ignoring the law, or disobeying the law.
I
submit that as a means of checking executive power, the legislature is
empowered to impose reasonable statutory limitations in such exercise, over
such areas wherein the legislative jurisdiction to legislate is ceded. As
stated earlier, among such areas within the
Indeed, there are appreciable limits to what restrictions Congress may impose on public offices within the Executive Branch. For example, a law prescribing a fixed term for a Cabinet Secretary which may extend beyond the President’s term of office is of dubious constitutional value, since Cabinet departments are recognized by law and tradition as extensions of the President, and their heads as alter egos thereof. This concession likewise finds constitutional enshrinement in the fact that the Appointments Clause vests solely in the President the power to appoint members of the cabinet, subject only to confirmation by the Commission on Appointments. I likewise recognize that in the absence of statutory restrictions, the President should be given wide latitude in the selection and termination of presidential appointees, and discretion to review, reverse or modify the acts of these officials.
GOCCs with original charters pose special considerations. The very fact that they were created by legislative enactments denotes the presence of statutory restrictions. At the same time, while remaining agencies of the State, they are in possession of independent juridical personality segregate from that of the Government. Indeed, the very corporate character of GOCCs implies a legislative intent to delegate sovereign functions to an entity that, in legal contemplation, is endowed with a separate character from the Government. The congressional charter of a GOCC should be recognized as legislative expression of some degree of independence from the Government reposed in the GOCC. The charter itself is an assertion of a GOCC’s statutory independence from the other offices in the executive branch.
The comments of Constitutional Commissioner Fr. Joaquin Bernas on the power of control over GOCCs warrant consideration:
It is submitted [that] the Executive’s power of
control over government-owned corporations, which in legal category are not on
the same level as executive departments, bureaus, or offices, is not purely
constitutional but largely statutory. The legislature may place them under the
control of the Executive where their functions “partake of the nature of
government bureaus and offices.” Unlike
executive departments, bureaus or offices, however, which by constitutional
mandate must be under the Executive’s control, government-owned corporations
may be removed by the legislature from the Executive’s control when the nature
of their functions is changed.[82]
Even with respect to other public offices, if Congress deems it necessary to vest such a particular public office with a degree of independence from the executive branch, then the legislative prescription of conditions to the appointment/removal, including the fixing of a term of office, should generally be upheld. Indeed, Congress has the right to create public offices. While falling under the executive branch of government, the legislature may find in its creation such a significant public purpose as to be accorded a degree of independence from the executive department. This may especially hold true for quasi-judicial agencies tasked with determining competing claims lodged by private persons against the executive department. In the United States, the Supreme Court has upheld the authority of Congress “in creating quasi-legislative or quasi-judicial agencies, to require them to act in the discharge of their duties independently of executive control … and that the authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.”[83]
Unlike the “necessary and proper” clause of the U.S. Constitution,[84] there is no express characterization in our Constitution as to what laws our legislature should enact. This should not dissuade the Court from recognizing that Congress has the right to enact laws that are for the public good, even if they impair the comfort of private citizens or the officials of government. There are valid legislative purposes for insulating certain agencies of the State from unfettered executive interference. Congress may create agencies under the executive branch tasked with investigatory or fact-finding functions, and accord them a necessary degree of independence by assuring tenure to its members, for example. I submit that such prerogative of Congress is aligned with the principle of checks and balances, under which the legislature is empowered to prescribe standards and impose limitations in the exercise of powers vested or delegated to the President. The ruling in the majority would sadly impair the right of the legislature to impart public offices it creates with safeguards that ensure independence from executive interference should Congress deem that such independence serves a necessary public purpose.
The implications are similarly ruinous
to the independent corporate personality of GOCCs as determined and fleshed out
by Congress. Their charters are legislative enactments beyond the pale of the
President to amend or repeal. In effect, there is a seeming new rule — that
the President may ignore or countermand statutory limitations contained in the
charters of GOCCs. The President may thus abolish chartered GOCCs at whim,
appoint persons Congress may have deemed as unqualified to positions in the
GOCC, alter the corporate purposes for which the GOCC was established, all in
the guise of executive control. Executive control may similarly be justified to
alter or deprive statutory rights which may have been vested by Congress to
private persons via the corporate charter. The power of Congress to charter
government corporations would be rendered worthless—an intent hardly justified
by the Constitution, which allocated the power to create GOCCs to Congress.[85]
CCP Charter a
Means of Promoting
An Autonomous
Policy on the Arts
Odd as the structure of the CCP may be, its atypical nature was not enacted for the sake of uniqueness, but for laudable public purposes which the Court should acknowledge. The CCP Charter, apart from recognizing the CCP’s corporate personality, goes as far as mandating that the CCP “enjoy[s] autonomy of policy and operation.”[86] While the inherent right of Congress to create public offices in general, and specifically to charter GOCCs sufficiently justifies the constitutionality of Section 6 of the CCP Charter. Still, if it is necessary to inquire into the public purpose for prescribing the unique setup of the CCP, I submit that the mandated autonomy of the CCP is in accord with constitutional principles that should be upheld and promoted.
The
Constitution provides that “arts and letters shall enjoy the patronage of the
State”[87] and “[t]he state shall foster the
preservation, enrichment, and dynamic evolution of a Filipino national culture
based on the principle of unity in diversity in a climate of free artistic
and intellectual expression.”[88]
More crucially, artistic and intellectual expression is encompassed in free
expression guaranteed by the Bill of Rights.[89]
Clearly, art and culture, in constitutional contemplation, is not the product
of collectivist thought like the prescribed social realism in Stalin’s
The assurance of policy and operational autonomy on the CCP is aligned with these constitutional purposes. Government-sponsored art is susceptible to executive diktat, especially to countermand unpopular art or to dilute its potency to the point of innocuousness. Indeed, executive control left unhampered could allow the executive branch to impose its own notions of what art and culture should be, and to block the art forms that do not conform to its vision. Given the paramount constitutional protection guaranteed to artistic expression, such executive interference would contravene constitutional rights. Such interference could be enforced by the executive through a Board of Directors whose subservience could be guaranteed by their staying in office solely by pleasure of the President. Even without the autonomy granted to the CCP in its charter, the CCP as a government agency would still be precluded from denigrating any person’s right to free expression. But the fact that the legislative charter did put into operation safeguards that promote a climate of artistic independence should be lauded and upheld as within the prerogative of the legislature to enact. There is no higher public purpose in the formulation of laws than to promote constitutional values.
I could not improve on the following disquisition of Justice Puno on the important role the CCP has played in our development as a nation:
The CCP Complex is the only area in the
But the fulfillment of CCP's mandate did not start and
end in
Art thrives within an atmosphere of free thought. The CCP Charter, by ensuring political and operational autonomy, ferments expression free from prior restraint or subsequent punishment from the executive department. There is a constitutional purpose to the independence attendant to the unique corporate structure of the CCP. There is constitutional authority for the legislature to charter a
government corporation with reasonable safeguards of independence from the executive branch. And there is a constitutional duty for the President to obey and execute the laws enacted by Congress.
Conclusion
The ruling of the Court today is boon
for those quarters which wish to concede to the presidency as much power as
there can be. Sadly, it comes at the expense of the time-honored prerogative of
Congress to legislate laws. The power of Congress to enact legislative charters
with any sort of restrictions that would be enforced is now severely put in
doubt. The power of Congress to fix the terms of the offices it creates is now
controvertible. The President has been given the green light to remove at will
officials whose terms of offices are set by law, without regard to the
constitutional guarantee of security of tenure to these officials. All these
wrought simply because for the majority, the CCP Board of Trustees somehow
transubstantiated itself into the CCP itself.
I have consistently advocated a
generous interpretation of presidential authority, owing to my firm belief in
the potency of the inherent and residual powers implicit in the highest office
of the land.[92] Still,
the Constitution is allergic to an omnipotent presidency, and thus, the law is
the limit. This is a live tiger that the majority has set loose today, one
utterly capable of inflicting great pain on the delicate balance that
safeguards the separation of powers.
DANTE O. TINGA
Associate Justice
[1]Issued by President Ferdinand Marcos on
[3]Per
Decision dated
[7]Section 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the laws be faithfully
executed.
[9]Those
officers whose appointment is vested to the President by the Constitution
include the Chairman and Commissioners of the three constitutional commissions
(Section 1(2), Article IX-B; Section 1(2), Article IX-C; Section 1(2), Article
IX-D), the members of the Judicial and Bar Council (Section 8(2), Article VIII),
the Ombudsman and his Deputies (Section 9, Article XI), members of the regional
consultative commissions (Section 18, Article X), and formerly, sectoral
representatives (Section 7, Article XVIII). See also Sarmiento v. Mison,
G.R. No. L-79974,
[12]For
emphasis and contrast, in this disquisition the term board used in the
Appointments Clause is spelled with a capital letter “B” (Board) while the
board of trustees/directors in government corporations is spelled with a small
letter “b” (board).
[15]Black’s Law Dictionary, p. 618; citing Commissioners
of State Ins. Fund v. Dinowitz, 179 Misc. 278, 39 N.Y.S.2d 34, 38.
[18]“The
rule is too well-settled to require any citation of authorities that the word
“or” is a disjunctive term signifying dissociation and independence of one
thing from each of the other things enumerated unless the context requires a
different interpretation.” People v. Martin, G.R. No.
33487,
[19]“It is
to be remembered that the law makes the proprietor, lessee or operator, of the
amusement place liable for the amusement tax, the three tax payers being
connected by the disjunctive conjunction “or,” thereby positively implying that
the tax should be paid either by the proprietor, the lessee, or the operator,
as the case may be, singly and not by all at one and the same time.” CIR v. Manila Jockey Club, Inc., 99 Phil. 289, 296 (1956).
[24]See J.
[25]See Vicente v. Geraldez, L-32473 &
32483, 31 July 1973, 52 SCRA 210, 227; citing Board of Liquidators v. Kalaw, L-18805, Aug. 14, 1967, 20 SCRA 987.
[26]“Where
there is ambiguity, such interpretation as will avoid inconvenience and
absurdity is to be adopted.” See CIR
v. TMX Sales, G.R. No. 83736, 15 January 1992, 205 SCRA 184, 188; Cosico,
Jr. v. NLRC, 338 Phil. 1080, 1089; Southern Cross Cement Corporation v.
PHILCEMCOR, G.R. No. 158540, 8 July 2004, 434 SCRA 65, 89.
[29]Decision, infra. I agree with the Decision that the
authority of Congress to authorize appointments by the heads of departments,
commissions, agencies or bureaus pertain only to those junior officers within
their respective enclaves. Thus, the Chairperson of the National Police
Commission cannot be authorized by law to appoint junior officials of the
Dangerous Drugs Board.
[36]See Malonso v.
“Relevantly,
Sec. 6, Rule 139-A of the Rules of Court provides in part:
Sec. 6. Board of Governors. — the
Integrated Bar shall be governed by a Board of Governors. Nine Governors shall
be elected by the House of Delegates from the nine Regions on the
representation basis of one Governor from each Region. . .
.
xxx xxx xxx
The Board shall meet regularly once every three months, on such date and
at such time and place as it shall designate. A majority of all the members of
the Board shall constitute a quorum to do business. . . .
From
these provisions, it is clear that before a lawyer may be suspended from the
practice of law by the IBP, there should be (1) a review of the investigator's
report; (2) a formal voting; and (3) a vote of at least five (5) members of the
Board. The rationale for this rule is simple: a decision reached by the
Board in compliance with the procedure is the official decision of the Board as
a body and not merely as the collective view of the individual members thereof.
This is in keeping with the very nature of a collegial body which arrives at
its decisions only after deliberation, the exchange of views and ideas, and the
concurrence of the required majority vote.
(Ibid, at 12-13; citing Consing v. Court of Appeals, G.R. No. 78272, 29
August 1989, 177 SCRA 14, 22. Emphasis supplied)
[37]19
C.J.S. 33 (1940 ed.), citing Mcwhirter v.
Washington Royalties Co., 152 A. 220, 17
[40]See Conde v. National Tobacco Corp., 110
Phil. 717, 721 (1961); citing 6 C.J.S. 89. See also H. de Leon and H. de Leon
Jr., The Law on Public Officers and
Election Law, 3rd.ed., 1997, at 48.
[41]F. MechEm, A Treatise on the Law of Public Offices and Officers, 1890
ed., at 61; citing Stocking v. State, 7 Ind. 326.
[44]See “Division
of Corporations, State of
[45]See §141(b), Subchapter IV. Directors and Officers, Chapter 1. General Corporation,
Title 8. Corporations,
[47]See Section 14, Corporation Code, which fixes the number of directors or trustees as not less than five (5), and not more than fifteen (15).
[54]See Humphrey’s
Executor v. United States, 295 U.S. 602 (1935); Wiener v. United States,
357 U.S. 349 (1958)
[56]See J. Bernas, The Intent of the 1986 Constitution
Writers, 1995 ed., at 596-98. The exclusion of unchartered GOCCs from civil
service coverage was in apparent adverse reaction to the Court’s ruling in National
Housing Authority v. Juco, G.R. No. 64313, 17 January 1985, 134 SCRA 172, that the Civil Service covered
all GOCCs irrespective of the manner of their creation. NHA
v. Juco, id., at 182.
[65]Section
9, Chapter 2, Subtitle A, Title I, Book V,
Administrative Code of 1987. A similar provision may be found in Section 6, Pres.
Decree No. 807.
[74]Castillo v. Pajo, 103 Phil. 515, 519
(1958); Llanto v. Dimaporo, et al.,
G.R. No. L-21905, 31 March 1966, 16 SCRA 599, 604; U.P. Board of Regents v. Razul, G.R. No. 91551, 16 August 1991, 200
SCRA 685, 693.
[75]De la Llana v. Alba, G.R. No. L-57883,
[83]Humphrey’s Executor v. United States, 295
[85]See
Section 16, Article XII, which reads: “Government owned or controlled
corporations may be created or established by special charters in the interest
of the common good and subject to the test of economic viability.” A charter
has been defined as an act of legislature creating a business corporation, or
creating and defining the franchise of a corporation.” See Black’s Law Dictionary, p. 236.
[90]Republic
v. Court of Appeals, infra, citing El Filibusterismo, Guerrero translation,
p. 49 [1965].
[92]See Sanlakas
v. Executive Secretary, G.R. No. 159085, 3 February 2004, 421 SCRA 656;
Separate Opinion, La Bugal-B’laan Tribal Association, Inc. v. Ramos,
G.R. No. 127882, 1 December 2004, 445 SCRA 1, 435-463; Constantino v. Cuisia,
G.R. No. 106064, 13 October 2005, 472 SCRA 505; Dissenting Opinion, David v.
Ermita, G.R. Nos. 171396, et al., 3 May 2006.