G.R. No. 192791

EN BANC

G.R. No. 192791 Funa v. The Chairman, Commission on Audit, Reynaldo A. Villar

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SEPARATE CONCURRING AND DISSENTING OPINION

MENDOZA, J.:

I convey my concurrence with the well-studied position of Justice Presbitero J. Velasco, Jr. that Section 1(2), Article IX-(D) of the 1987 Constitution does not proscribe the promotion or upgrade of a commissioner to a chairman, provided that his tenure in office will not exceed seven (7) years in all. The appointment is not covered by the qualifying or restricting phrase without reappointment twice written in that section.

From the records, the following appear to be the facts of the case:

1] On February 15, 2001, then President Arroyo appointed Carague as Chairman of the Commission on Audit (COA) for a term of seven (7) years from February 2, 2001 to February 2, 2008.

2] Three years later, on February 7, 2004, President Arroyo appointed Villar as the third member of the COA also for a term of seven years, or from February 2, 2004 to February 2, 2011.[1] When Caragues term of office expired, Villar was designated as Acting Chairman of the COA from February 4, 2008 to April 4, 2008. On April 18, 2008, on his fourth year as COA Commissioner, Villar was appointed to the position of COA Chairman with a term ending on February 2, 2011. His promotion was subsequently confirmed by the Commission on Appointments on June 11, 2008.[2]

3] On January 5, 2010, San Buenaventura was appointed as COA Commissioner by President Arroyo. As shown in her appointment papers, she was to serve only the unexpired term of Villar as commissioner or up to February 2, 2011.[3]

4] On July 26, 2010, Funa filed this petition for certiorari and prohibition challenging the constitutionality of the appointment of Villar as COA Chairman contending that the promotion of Villar, who had served as member therein for four (4) years, was a violation of the Constitution because it was, in effect, a prohibited reappointment.

From the pleadings and memoranda, it appears that the principal issue is whether or not the constitutional proscription on reappointment includes the promotion of an incumbent commissioner as chairman of a constitutional commission.

The resolution of the issue entails the proper interpretation of Section 2, Article IX-D of the Constitution which reads:

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointment for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (Emphases supplied)

From the aforequoted provision, the following are clear and undisputed:

The FIRST sentence sets out that the members of the COA must be appointed by the President for a non-extendible term of seven years, thus, the phrase without reappointment at the end of the sentence;

The SECOND sentence specifically directs that the first set of appointees to the COA starting with the Chairman shall have a non-extendible term of seven, five and three years, which provision sets the ball rolling for the staggered system of appointments;

The terms of these first appointees to the COA are also non-extendible for the second sentence is also qualified by the phrase without reappointment;

The THIRD sentence instructs that an appointment to any vacancy in the COA shall only be for the unexpired term of the predecessor; and

The FOURTH sentence imposes a restriction on the power of the appointing authority, the President, to designate a member of the COA in a temporary or acting capacity.

The Framers were clear in setting these limitations. They could very well have been as clear and explicit with respect to promotions if it was their intention to do so.

My reasons for being one with Justice Velasco on the issue are the following:

1] the Constitution does not explicitly proscribe such promotions;

2] before the 1987 Constitution, there were several unquestioned and upheld promotions of similar nature; and

3] after the 1987 Constitution, a commissioner was still promoted to succeed a chairman.

There is nothing at all in Section 2 which expressly or impliedly proscribes promotion of a commissioner to chairman. If it was the intention of the Framers to absolutely prohibit such movement, it would have been categorically specified and spelled out in the provision. Evidently, there was none. There were indeed discussions about it in the constitutional commission but nothing definite was finally crafted.

The only thing clear was that members could not be reappointed either as commissioner or chairman after they had served their respective terms of office. Nothing even remotely suggested that there was an intention to do away with promotion or upgrade.

In the past (even under the 1987 Constitution), there were unquestioned promotions in the various constitutional commissions whether due to the death, disability, resignation, impeachment or expiration of the term of the predecessor, promotions were made and had, in fact, been unchallenged.

In Visarra v. Miraflor,[4] the appointment of Commissioner Gaudencio Garcia (Garcia) to succeed Chairman Jose P. Carag (Carag), upon the expiration of the latters term in 1959, was recognized by the Court without question. In Nacionalista Party v. De Veyra,[5]Vicente de Vera was among the first commissioners appointed to the Commission on Elections (COMELEC) under the 1935 Constitution. When the COMELEC chairmanship became vacant by the death of Chairman Jose Lopez Vito in 1947, De Vera was promoted to occupy this vacancy for the unexpired term of the former incumbent. De Veras appointment to the chairmanship was met with protest, on the theory that his promotion thereto was considered a reappointment disallowed by the Constitution. The Court, through former Chief Justice Moran, upheld the appointment.

The reason therefor was embodied in the concurring opinion of Justice Angelo Bautista in Visarra that the ruling in Nacionalista remains to be a binding precedent on the validity of a promotion of an incumbent Commissioner to the position of Chairman. Thus:

[T]o hold that the promotion of an Associate Commissioner to Chairman is banned by the Constitution merely by judicial fiat would be to relegate a member forever to his position as such without hope of enjoying the privileges incident to the chairmanship while giving a premium to an outsider who may be less deserving except probably his political ascendancy because of his lack of experience on the mechanics of that delicate and important position x x x its effect is to stimulate hard work greater zeal and increased efficiency for a member in the hope that his efforts would someday be rewarded with a promotion. The contrary would relegate him to apathy, indifference, hopelessness and inaction. It is never a good policy to stultify ones legitimate ambition to betterment and progress.[6]

Despite the deliberations in the constitutional commission, there was no discussion at all on such a prohibition. What was clearly discussed and settled was the safety valve that no appointee shall serve an aggregate period of more than seven (7) years. The records of the deliberations of the 1986 Constitutional Commission disclose the following:

MS. AQUINO. Thank you.

In the same paragraph, I would propose an amendment by addition on page 2, line 31. Between the period (.) after the word predecessor and the sentence which begins with In no case, insert THE APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may approximate the situation wherein a commissioner is first appointed as an ordinary commissioner and later on appointed as chairman. I am willing to withdraw that amendment if there is representation on the part of the Committee that this provision contemplates that kind of situation and that there is an implicit intention to prohibit a term that in the aggregate will exceed more than seven years. If that is the intention, I am willing to withdraw my amendment.

MR. MONSOD. If the Gentleman will read the whole Article, she will notice that there is no reappointment of any kind and, therefore, as a whole, there is no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for and appointment of a temporary or acting capacity is also accounted for. But I was thinking of a situation wherein a commissioner is upgraded to a position of chairman. But if this provision is intended to cover that kind of situation, then I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In other words, if there is upgrading of position from commissioner to chairman, the appointee can only serve the unexpired portion of the term of the predecessor.

MS. AQUINO. But we have to be very specific about it; the provision does not still account for that kind of a situation because, in effect, it might even shorten the term because he serves only the unexpired portion of the vacant position.

MR. FOZ. He takes it at his own risk. He knows that he will only have to serve the unexpired portion of the term of the predecessor.

MS. AQUINO. Regardless of that, my question is: Will this provision apply likewise to that kind of a situation? In other words, I am only asking for an assurance that the safety valve applies to this situation.

MR. FOZ. The provision does take care of that situation.

MS. AQUINO. Thank you.

On the whole, Commissioner Aquino was of the position that the prohibition on re-appointment does not include the promotion or upgrade of an incumbent commissioner to the position of chairman. What she was firm about was an implicit intention to prohibit a term that in the aggregate will exceed more than seven years. For her, a promotion or an upgrade was permissible for as long as the aggregate term would not exceed the seven- year limit.

Commissioner Monsod shared a similar position. Although he made a sweeping remark, a full and complete reading of his response would reveal that he was merely assuring Commissioner Aquino that there would be no chance for anybody to serve for more than seven years.

The response of Commissioner Foz bares that he did not foreclose that situation of a commissioner being upgraded to a chairman.

After the 1987 Constitution was ratified, on February 2, 1987, former President Corazon C. Aquino (President Aquino) appointed Teofisto Guingona (Guingona) as COA Chairman for a term of seven years, Bartolome Fernandez (Fernandez) as commissioner for a term of five years, and Eufemio Domingo (Domingo) as commissioner for a term of three years. When Guingona resigned to run for a senate seat, President Aquino promoted Commissioner Domingo to the position of Chairman.[7]

With due respect to Justice Velasco, I part with him with respect to his position that a commissioner cannot be promoted as chairman in case of the expiration of the term of his predecessor. My view is that such a promotion is allowable not only in case of death, disability, resignation or impeachment.

It has been argued by the petitioner that since Carague had already completed his full term, Villars appointment was a constitutional impossibility[8] because granting him a fresh term of seven (7) years as Chairman would give him more than the maximum term allowed, in view of his four-year tenure as Commissioner. This, for petitioner, completely debunks Villar's assertion that he must remain as COA Chairman until 2015. A similar view was aired when it was advocated that Villars promotion was invalid because it was not legally feasible in the light of the 7-year aggregate rule.[9] The explanation given was that Villar has already served 4 years of his 7-year term as COA commissioner. A shorter term, however, to comply with said rule would effectively breach the clear purpose of the Constitution of giving every appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years.[10]

The undersigned finds himself unable to agree with such position for three reasons. First, it has no explicit constitutional basis. Second, in the past, commissioners were promoted to the chairmanship without any question. Third, it is unfair to an incumbent commissioner who cannot hope to be promoted in case of expiration of the term of a chairman.

The position that a commissioner cannot be promoted in case of expiration of a term of chairman has no clear and concrete constitutional basis. There is nothing at all in the subject constitutional provision which expressly or impliedly restricts the promotion of a commissioner in situations where the tenure of his predecessor is cut short by death, disability, resignation or impeachment only. Likewise, there is no express provision prohibiting a promotion in case of the expiration of the term of a predecessor. The ponencia mentioned some distinctions but they were not clear or substantial. There were no discussions about it either in the debates of the constitutional commission. What is unchallenged is the prohibition on reappointment of either a commissioner or chairman after he has served his term of office (expiration of term), or his term has been cut short by disability or resignation.

In promotions, naturally the predecessor is a chairman. In case of expiration of his term, an incumbent commissioner can be appointed. Note that in the Constitution, there is no distinction whether the predecessor is a chairman or a mere commissioner. For said reason, among others, it is my considered view that a commissioner can be promoted in case of expiration of term of the chairman.

In fact, in the past, a commissioner was promoted to chairman after the expiration of the term of his predecessor. He was Commissioner Garcia, who was promoted to succeed Chairman Carag of the COMELEC, upon the expiration of the latters term in 1959.

Premises considered, it is my considered view that the promotion of Villar was legal but he could serve up to February 15, 2011 only because his tenure should not exceed seven (7) years.

Respectfully submitted.

[6] Concurring Opinion of Justice Angelo Bautista in Visarra v. Miraflor, 118 Phil. 1, 13 (1963).

[7] Rollo, pp. 240 to 243 and pp. 315 to 316.

[8] Memorandum for Petitioner, rollo, p. 227.

[9] Concurring and Dissenting Opinion, dated October 7, 2011, of Mr. Justice Velasco, p. 10.