Calderon v. Carale, G.R.

91636, April 23, 1992 (Appointments S16 A7)

FACTS:
"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 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."

The Commissioner of the Bureau of Customs, a bureau head, is not one of those in the first
group of appointments where CA consent is required. The 1935 Constitution included “heads of
bureaus”, but the 1987 Constitution deliberately excluded it from appointments that need the
consent/confirmation of the CA.

The clear and expressed intent of the framers was to exclude from CA confirmation presidential
appointments, except appointments to offices in the first sentence of Sec.16, Art.7.

Same for the Chairman of the CHR. The appointment of such chairman is not provided in the
Constitution, unlike the Chairmen and Members of the CSC, COMELEC, and CoA, whose
appointments are expressly vested by the Constitution in the President with the consent of
the CA. The chairman of the CHR is appointed pursuant to the second sentence of Sec.16, Art.7-
without the confirmation of the CA because they are among the officers “whom he may be
authorized by law to appoint.”(EO 163, Sec.2(c) authorizes the President to appoint the CHR
Chairman and Members)

But the President needs CA confirmation for appointment of Sectoral representatives in

congress because Sec.7, Art.18 of the Constitution allows the president to fill by appointment
sectoral seats reserved by Section 5, Art.6 par.2. Thus, it is one of those “other offices whose
appointments are vested in the President in this Constitution.”

Thus:
1. Confirmation by the CA is required only for presidential appointees mentioned in the 1st
sentence of Sec.16, Art.7, including those whose appointments are expressly vested by the
Constitution in the president. (Sectoral reps, members of CoA, CSC, COMELEC)
2. Confirmation is not required when the President appoints other government officers whose
appointments are not provided by law or those he is authorized to appoint (CHR chairman).
When Congress creates inferior offices but omits to provide for appointment thereto, or
provides in an unconstitutional manner for such appointments, the offircers are considered as
among those appointments not otherwise provided for by law.

In 1989, RA 6715, Herrera-Veloso Law, amending the Labor Code, provides in Sec.13:
The Chairman, the Division Presiding Commissioners and other Commissioners shall all
be appointed by the President, subject to confirmation by the Commission on
Appointments.

Thus, president Cory appointed such to the NLRC. However, she did not submit it to the CA. This
petition for prohibition questions the constitutionality of the permanent appointments of Cory
to the chairman and members of the NLRC without submitting them to the CA for
confirmation pursuant to RA 6715.

ISSUE:
Whether Congress may, by law, require confirmation by the CA of appointments extended by
the President to government officers in addition to those expressly mentioned in the first
sentence of Sec.16, Art.7.

HELD: NO.
It was opined in the Mison case that in the debates of the framers on Sec.16, two major
changes were approved. 1) The exclusion of appointments of heads of bureaus, and 2) the
exclusion of appointments made under the 2nd sentence of the section from CA confirmation.
This 2nd sentence refers to all other officers of the government whose appointment are not
otherwise provided for by law and whom the president may be authorized by law to appoint.

The NLRC chairman and commissioners fall under the 2nd sentence (authorized by law). RA 6715
is unconstitutional to the extent that it requires CA confirmation of the appointments of the
NLRC members. It amends by legislation the first sentence of Sec.16 by adding thereto
appointments requiring confirmation and it amends by legislation the second sentence of
Sec.16 by imposing CA confirmation on appointments entrusted only with the president.

The legislature has the power to make and enact laws but not to interpret them, especially the
basic law, the Constitution. If the legislature may declare what a law means especially after the
courts have in actual cases ascertained its meaning by interpretation, this would cause
instability in judicial processes. A final court determination of a case may be undermined by a
subsequent or different interpretation of the law by the legislature. This would be unwise and a
violation of separation of powers.

Section 16, Art.7 was deliberately intended by the framers to be a departure from the system in
the 1935 Constitution where the CA exercised confirmation over almost all presidential
appointments, leading to many cases of abuse of the power of confirmation.

Matibag v. Benipayo
An ad interim appointment is permanent because it takes effect immediately and can no longer
be withdrawn by the president once the appointee has qualified into office. The fact that it is
subject to confirmation by the CA does not alter its permanent character. The Constitution
makes an ad interim appointment permanent by making it effective until disapproved by the CA
or until the next adjournment of Congress.

The second paragraph of Sec.16, Art.7 provides that: "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." Thus, the ad interim appointment remains
effective until such disapproval or next adjournment, signifying that it can no longer be
withdrawn or revoked by the President.

The Constitution imposes no condition on the effectivity of an ad interim appointment and

thus, it takes effect immediately. The appointee can at once exercise, as a de jure officer, all
powers pertaining to the office. When the president appoints while Congress is in session, he
nominates, and only upon consent of the CA can the appointee assume office. When he
makes an ad interim appointment- during recess of Congress, it takes effect at once. The
appointee may qualify and perform his function without loss of time. His title to the office is
complete. It is effective until disapproval or the next adjournment.

“Ad interim” means “in the meantime or “for the time being.” An officer ad interim is one
appointed to fill a vacancy or to discharge the duties of the office during the absence or
temporary incapacity of its regular incumbent. BUT such is not the meaning intended in the
context of PH law. The term is not descriptive of the nature of the appointment, it merely
denotes the manner in which said appointments were made (during recess of Congress). Thus,
“ad interim appointment” means a permanent appointment made by the president in the
meantime that Congress is in recess. It does not mean a temporary appointment that can be
withdrawn at any time.

The term, while not found in the text of the Constitution, has acquired a definite legal meaning
under PH jurisprudence. Thus, an ad interim appointment is NOT synonymous with a temporary
appointment which could validly be terminated at any time.

An ad interim appointee who has qualified and assumed office becomes a part of the civil
service. He enjoys the constitutional protection that “no officer or employee in the civil
service shall be removed or suspended except for cause provided by law.” Withdrawal from
office is tantamount to removal. The withdrawal of ad interim appointment is possible ONLY if
it is communicated to the appointee BEFORE the moment he qualified, and any withdrawal
thereafter is tantamount to removal from office. Once an appointee qualifies, he acquires a
legal right to the office, which is protected.

An ad interim appointment may be terminated for 2 causes provided in the Constitution: 1)

disapproval of appointment by the CA, 2) adjournment of Congress without the CA acting on his
appointment (bypass). These are resolutory conditions expressly imposed by the Constitution
on all ad interim appointments.

As opposed to ad interim appointments, a temporary or acting appointment can be withdrawn

or revoked at the pleasure of the appointing power. He does not enjoy security of tenure. This
is what the Constitution prohibits the president from making to the three independent
constitutional commissions (CSC, CoA, COMELEC). The constitution safeguards the
independence of the commissions. An acting appointment to the Constitutional Commissions
would undermine their independence and violate the Constitution.

The purpose of ad interim appointments is to avoid interruptions in vital government services.

If the term of such appointments expired before the session of Congress, the fear sought to be
avoided might take place. But once Congress has adjourned, such evil may be conjured by the
issuance of other ad interim appointments or reappointments.

Thus, under Section 16, Art.7, par.2, the president has 2 modes in appointing officials who are
subject to CA confirmation: 1) while Congress is in session, he may nominate the appointee and
pending consent of the CA, the nominee cannot qualify or assume office, and 2) during the
recess of Congress, he may extend ad interim appointments which allows the appointee to
immediately qualify and assume office. This is under the president’s prerogative because the
Constitution grants such power. This Court cannot inquire into the propriety of the choise of
the president in such exercise of a constitutional power absent grave abuse.

While the power of ad interm appointment may put the appointee briefly at the mercy of the
appointing and confirming powers, this is only for a short period until the CA confirms or
withholds its consent. The Constitution allows this as a trade-off against the evil of disruptions
in vital government services. This is also part of the check-and-balance under the separation of
powers as a trade-off against granting the president the absolute and sole power to appoint.
This situation does not compromise the independence of the COMELEC. The vacancies in the
COMELEC are staggered to insure that majority of its members hold confirmed appointments,
and not one president will appoint all COMELEC members.

Ad interim appointee disapproved by CA can no longer be extended a new appointment. CA’s

decision is final and binding and cannot be appealed.
An ad interim appointee disapproved by the CA can no longer be extended a new appointment.
The disapproval is a final decision in the exercise of its checking power on the appointing
authority of the president. The disapproval is a decision on the merits after CA deliberations on
the qualifications. Since the Constitution does not provide for any appeal from such decision,
this disapproval is final and binding on both the appointee and the appointing power. Thus, the
president can no longer renew the appointment not because of the constitutional prohibition
on reappointment, but because of a final decision by the CA to withhold its consent to the
appointment.
But a BY-PASSED appointment because of lack of time or failure of the CA to organize is one
that has not been finally acted upon on the merits by the CA at the close of the session. There
is no final decision by the CA to give or withhold its consent as required by the constitution.
Thus, without such decision, the president is free to renew the ad interim appointment of a
by-passed appointee.

An ad interim appointment ceases to be effective upon disapproval of the CA because of a

positive objection. It also ceases upon the next adjournment simply because the president
may then issue new appointments- not because of implied disapproval of the CA deduced
from its inaction, for under the constitution, the CA may adversely affect ad interm
appointments ONLY by action, NEVER by omission. The reason for termination of the interim
appointment is not the disapproval allegedly inferred from the omission to act, but the
circumstance that upon said adjournment, the president is free to make ad interim
appointments or reappointments.

It is not Section 1(2) of Article IX-C that applies to disapproved or by-passed ad interim
appointments. A disapproved interim appointment cannot be revived by another interim
appointment because the disapproval is final under Section 16, Art.7, and not because a
reappointment is prohibited under Sec.1(2), Art.9-C. a by-passed interim appointment can be
revived by a new ad interim appointment because there is no final disapproval under Sec.16,
Art.7, and such new appointment will not result in the appointee serving beyond the fixed term
of 7 years. (For COMELEC? Or all consti commissions? Art.9-C)

An ad interim appointment that has lapsed by inaction of the CA DOES NOT constitute a term
of office. The period from appointment to the time it lapses is neither a fixed term nor an
unexpired term. Otherwise, the president could start and complete the running of a term of
office in the COMELEC without the consent of the CA. This would render the confirming powers
of the CA inutile. (Thus the prohibition on reappointment and 7-year term limit won’t apply)

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and
Tuason do not violate the prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The same ad interim appointments and
renewals of appointments will also not breach the seven-year term limit because all the
appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008. Any delay in their confirmation will not extend the expiry date of
their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad
interim appointments of these three respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim
appointment of these three respondents, for so long as their terms of office expire on February 2,
2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the
Constitution.

Lagman v. Medialdea
1. The only requisite for standing to challenge the validity of the suspension of HC and ML is
that the challenger be a citizen. He need not even be a taxpayer. (Section 18, Art.7- “Any
citizen” may file the appropriate proceeding)

2. “Appropriate proceeding”
Section 18 grants the Court authority to determine the factual sufficiency of the proclamation
of ML and suspension of HC.

“Appropriate proceeding” does not refer to certiorari under Sections 1/5 of Article 8. The
standard of review in this is whether there is GADALEJ. Thus, it is not the proper tool to review
the factual sufficiency. The Court is tasked to review the sufficiency of factual basis, if it applies
the standard of review in certiorari, it would emasculate its constitutional task under Sec.18.
The purpose of Sec.18 is to curtail the president’s power and provide safeguards.

The unique features of the 3rd paragraph of Sec.18 make it sui generis, separate from those
enumerated in Art.8. Under Sec.18(3), a different rule on standing follows since any citizen may
file. It also limits the issue to the factual sufficiency. The usual period for filing pleadings in
certiorari is not applicable considering the limited period within which this Court has to
promulgate its decision.

A proceeding in its general acceptation, is the form in which actions are to be brought and
defended, the manner of intervening in suits, of conducting them, the mode of deciding them
etc. “in an appropriate proceeding” refers to any action initiated by a citizen for the purpose of
questioning the sufficiency of the factual basis of the exercise of the Chief Executive’s
emergency powers. It could be denominated as a complaint, a petition, or a matter to be
resolved by the court.

3. Power to review is independent of the actions of Congress.

The Court may strike down the presidential proclamation thru an appropriate proceeding by
any citizen, while Congress may revoke the proclamation which shall not be set aside by the
president.

In reviewing the sufficiency of factual basis, the Court considers only the information and data
available to the president prior to or at the time of the declaration. It cannot undertake an
independent investigation beyond the pleadings. Congress may take into consideration not
only such data, but even events supervening the declaration. The Court does not look into the
absolute correctness of the factual basis, while Congress could probe deeper and into the
accuracy of the facts presented before it. The Court’s review power is passive, while Congress’
is automatic in the sense that it may be activated by it at any time after the proclamation.

Thus, the Court’s review is independent of Congress’, just as the framers intended. The Court
can simultaneously exercise its power of review independently from Congress.
4. The judicial power to review the factual sufficiency does not calibrate the president’s
decision of which among his graduated powers he will avail of in a given situation.
Among the 3 powers, the calling-out power is the most benign and involves ordinary police
action. The president may resort to this whenever it becomes necessary to prevent or suppress
lawless violence, invasion, or rebellion. This power is fully discretionary to the president, only
that he must act within constitutional limits without GADALEJ. The actual use which the
president puts the armed forces is NOT subject to judicial review.

But the power to suspend HC and declare ML may only be exercised when there is actual
invasion or rebellion, and public safety requires it. The Constitution imposed the following
limits: 60-day time limit, possible review and revocation by Congress and SC.

ML serves as a warning to citizens that the executive department has called upon the military to
assist in the maintenance of law and order, and while the emergency remains, the citizens
must, under pain of arrest and punishment, not act in a manner that will make it more difficult
to restore order and enforce the law.

ML does NOT suspend the operation of the Constitution. It also does not supplant the
operation of civil courts or legislative assemblies. The guarantees of the bill of rights remain.
The suspension of HC only applies to those judicially charged with rebellion or offenses
connected with invasion.

The Constitution gives the president a sequence of graduated powers, but it only refers to
scope and effect and not to a sequence or arrangement or order that the president must
follow. The power and prerogative to determine whether the situation warrants the exercise of
which power lies, at least initially, with the president. As Commander in Chief, his powers are
broad enough to include his prerogative to address exigencies that endanger the state. Thus,
judicial review does NOT extend to calibrating such prerogative. Time is paramount in
situations necessitating ML etc. The Court and Congress must give the president leeway by not
wading into the realm reserved exclusively by the Constitution to the executive department.

5. The calling out power is a different category from the power to declare ML or suspend HC,
thus the revocation of the proclamation declaring ML will not affect the proclamation
exercising the calling-out power.
There is no provision that the calling-out power may be reviewed by Congress or the Court. This
distinction places the calling-out power in a different category. He may exercise the calling-out
power independently of the other powers. The exercise of the calling-out power may be
reviewed only as to whether it was exercised within permissible constitutional limits or in a
manner constituting GADALEJ.

6. Scope of the power to review of the Court is only to the determination of the sufficiency of
factual basis of the declaration of ML and suspension of HC.
The Court does not need to satisfy itself that the president’s decision is correct, rather it only
needs to determine whether the president’s decision had sufficient factual basis. Section 18
limits the scope of judicial review by the introduction of the “sufficiency of the factual basis”
test. Events that happened after the issuance of the proclamation, which are included in the
report to congress, cannot be considered in determining factual sufficiency since they
happened after the president had already issued the proclamation. If at all, they may only be
used as tools, guides, or reference in the Court’s determination of the factual sufficiency, BUT
not as part of the component of the factual basis itself.

7. Parameters for determining factual sufficiency

Section 18 sets out the parameters of the factual sufficiency: 1) actual invasion or rebellion, 2)
public safety requires the exercise of the power. Without the two conditions, the declaration of
ML and suspension of HC must be struck down. A word used in a statute with a technical or
legal meaning is to be construed as having the same technical or legal meaning, generally. Since
the Constitution did not define “rebellion”, it must be understood as “rebellion” in the RPC
(Art.134).

Thus, for rebellion to exist, the following elements must be present, to wit: "(1) there is a (a)
public uprising and (b) taking arms against the Government; and (2) the purpose of the uprising
or movement is either (a) to remove from the allegiance to the Government or its laws: (i) the
territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed
forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives."

In determining the existence of rebellion, the president only needs probable cause or evidence
showing that more likely than not a rebellion was committed or is being committed. A higher
standard would restrict the exercise of the president’s powers. This merely necessitates an
average man to weigh the facts and circumstances without resorting to the calibration of the
rules of evidence of which he has no technical knowledge. He merely relies on common sense.

8. The president has discretion to determine the territorial coverage of ML or suspension of

HC.
Section 18 states that “in case of invasion or rebellion,…, or place the Philippines or any part
thereof under martial law.”