Nacionalista Party v. Bautista
Nacionalista Party v. Bautista
Nacionalista Party v. Bautista
SYLLABUS
DECISION
PADILLA , J : p
Separate Opinions
REYES , J.:
I concur, except as to the requirement that petitioner amend its petition. Under
the Rules, objection to the personality of petitioner is deemed waived if not pleaded.
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OZAETA , J., concurring :
It is unnecessary for me to state the facts and issues involved in this case for the
reason that they are well stated in the learned majority opinion penned by Mr. Justice
Padilla.
I concur in the majority opinion except where it denies to the Chief Executive the
right to temporarily ll a permanent vacancy in the Commission on Elections by
designation. As regards the retirement of Commissioner Enage resulting in a
permanent vacancy in the Commission on Elections, it is to be understood of course
that the ruling of this Court on that point is valid only in the present case in the sense
that it may not bind Commissioner Enage who took no part in these proceedings.
As a rule and unless quali ed by constitutional or statutory provision the power
to appoint includes the lesser power to designate. There are times and occasions when
a temporary designation, particularly in the Commission on Elections is necessary and
imperative. There are only three Commissioners in the Commission. Should one of the
three Commissioners be disquali ed, or be on leave or be sick and unable to perform
his duties, and should there be a deadlock in voting between the two remaining
Commissioners, the President must necessarily designate another to act temporarily
as Commissioner so as not to interrupt or hamper the functions of the Commission. He
cannot make a permanent appointment for the reason that there is no vacancy. In case
two of the Commissioners are absent on leave or sick or disquali ed, designation of
one or two persons to temporarily act in the Commission would still be more necessary
and imperative. Fortunately, the majority opinion concedes, though it seems, reluctantly
and rather indirectly that in such cases the Chief Executive may make designations
temporarily. With this concession, I deem it unnecessary to elaborate on this point.
Now, let us go to the main issue of the legality or illegality of temporarily lling a
permanent vacancy with a designation as what happened in the present case. The
majority holds that in case of a permanent vacancy, the legal and proper thing to do is
for the President to make a permanent or ad interim appointment for the reason that to
designate one to act temporarily in the Commission would impair the independence of
that body, provided for and guaranteed by the Constitution. I fail to see any difference
or distinction between a designation to temporarily ll a vacancy and an ad interim
appointment to permanently ll the same vacancy in the Commission on Elections in
relation to and in their effect on the independence of that entity. The majority opinion
fails to show such alleged distinction or difference or otherwise enlighten us on the
point. Both designation and ad interim appointment in my opinion if conferred on the
right and proper person do not and will not affect the Commission's independence. I
suppose the majority starts from the theory that a person designated temporarily to
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the Commission cannot act independently because his tenure being temporary,
precarious and at the pleasure of the President, he is, so to speak, always under the
thumb of the Chief Executive who may withdraw the designation and put him out the
moment he (the one designated) acted against the interests of the President or of his
party. So to keep the designation and continue acting in the Commission, the one
designated sacri ces the independence of the Commission and his own self-respect
and does the President's bidding.
The aw in this theory, however, is that it assumes or presupposes the
appointing power to be so utterly lacking in mental honesty, fair dealing and plain
decency, and the person designated equally devoid of character, and independence of
judgment, but cursed with a mistaken sense of loyalty to the one designating him. I
believe that we should not indulge in or entertain such a presumption unless there be
valid grounds for the same, based on proof. But assuming for a moment all these evils
to be possible, they may and do equally apply to designations to be made by the
President where there is no vacancy but only disquali cation, physical disability or
absence of any of the Commissioners, so that from the point of view of the majority, in
every case of designation to the Commission, whether to temporarily ll a vacancy or in
case merely of disquali cation, sickness or absence of any of the Commissioners, the
independence of that body is always menaced and impaired.
It seems that the main, if not the whole objection on the part of the petitioner to
the designation made in this particular case lies in the fact that the person designated,
the Solicitor General, had previously been representing the Chief Executive in the
impeachment proceedings before Congress and in the emergency powers cases
brought before this Court; that by reason thereof, said Solicitor General's loyalty to the
Chief Executive has so crystallized and de nitely settled that in acting now in the
Commission, he would consciously or unconsciously be guided and his decisions
colored by such loyalty, especially since the present Chief Executive as a candidate in
the last presidential election is interested in the acts of the Commission in regard to
said elections. But as the majority opinion itself states, there is not much, if any, that the
Commission on Elections can do to favor or to prejudice a presidential candidate.
According to the majority, the Commission may not suspend the election in any
province as two of its Commissioners had voted in a resolution approved by them.
Neither may the Commission annul the elections in any province or district as the said
two Commissioners had supposedly threatened to do if the elections in some
provinces were not postponed. There would therefore be not much, if any, that a person
designated by the Chief Executive under these circumstances could do even if wantonly
disposed.
Had the President in this case designated someone else say, a Judge of the
Court of First Instance or a Justice of the Court of Appeals or any practising attorney, it
is to be doubted if said designation would have been questioned.
Going back to the alleged impairment of the independence of the Commission by
a designation to temporarily ll a permanent vacancy, the same danger so much
predicted and feared by the majority and the petitioner would equally be present in case
of a permanent, though ad interim appointment. To me, it would even be worse because
the hazard through which a person with an ad interim appointment has to go is greater.
In the case of a designation as was done in the present case, supposing that the Chief
Executive held the withdrawal of the designation as a sword of Damocles over the head
of the Solicitor General so that the moment the latter displeased the President with his
actuations in the Commission the designation will instantly be withdrawn, in such a
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case Solicitor General Bautista would not suffer or lose anything. Perhaps, after all, the
loss of the designation to the Commission was a welcome relief to him because the
designation meant additional work and even embarrassment to him as is happening in
his case. He did not lose his post as Solicitor General and he would be but glad to
return to it. But not so with one favored with an ad interim appointment. Such a person
if an o cer of the government loses and forfeits his o cial post the moment he
accepts the ad interim appointment. If he is a practising attorney he has to dispose of
his pending cases, and dissolve his connections with his law rm, if any, as well as give
up all control or management of any private enterprise which may be affected by the
functions of his o ce, including nancial interest in any contract with the Government.
(Art. X, section 3, Philippine Constitution.) We must bear in mind that in these examples
we are assuming or presupposing an appointing power who is evil-minded, lacking in
mental honesty and disposed to go to any extremes to achieve his desire. Let us also
remember that we have here the party system where the Chief Executive ordinarily is a
member and is the head of the majority party in power. If the person with an ad interim
appointment fails to act in the Commission in accordance with the dictates and desires
of the President, his con rmation may easily be blocked in the Commission on
Appointments. The Commission on Appointments in order to accommodate the Chief
Executive may not only fail to con rm the appointment but may even reject it for
supposed lack of quali cations in training, education and experience or even of
character quali cation. The appointee is naturally embarrassed if not disgraced. He
loses the appointment; he had already lost his o cial post that he vacated when he
accepted the ad interim appointment, and if he is a private practitioner, he had lost at
least temporarily his clients in his law practice. So, I say that if a person designated
temporarily to ll a permanent vacancy and one given an ad interim appointment to ll a
similar vacancy were both persons with a distorted sense of loyalty to the appointing
power, and lacking in character and dignity and a sense of duty, were similarly situated,
and under the same pressure and threat from the appointing power, there might be
more temptations in the case of the person with an ad interim appointment to abuse
his power and discretion in the Commission to favor the Chief Executive, for the reason
that the danger and alternative consequences are far greater and more serious.
Considering the circumstances surrounding the designation of Solicitor General
Bautista to act in the Commission in a temporary capacity the majority opinion has well
said that we may not inquire into the motives prompting said designation. Taking a
casual view of the case, it is possible that a happier designation, of someone else could
have been made, not in the sense that Solicitor General Bautista is not quali ed by
education, training and experience or by character to act in the Commission, for he
appears to be fully quali ed for this post, but because any other person who has had no
association or connection with the President if designated would have aroused no
speculation or suspicion or fear about his actuations in the Commission. But in favor of
the action of the President, it is said that he believed that he was merely following a
precedent set by the late President Quezon who, in 1941, designated the then Solicitor
General Roman Ozaeta to act temporarily in the Commission on Elections. Said
designation is published in the O cial Gazette. Justice Ozaeta, however, says that he
does not recall any such designation in his favor. There is no reason whatsoever to
doubt even for a moment Justice Ozaeta's word. It is highly possible that the
designation though o cially made may not have been communicated to him and he
never acted in the Commission, perhaps because subsequently there was no longer any
necessity or occasion for him to do so. Hence his lack of knowledge or inability at
recollection. Be that as it may, the President was informed of this precedent and
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according to Solicitor General Bautista, he was designated merely, if not exclusively on
the strength of such precedent.
One may ask why the President could not and did not make a permanent
appointment to ll the vacancy in the Commission. We are not in a position to give the
right answer. Any answer that one may give would at best be con ned to the realm of
speculation. But it is not hard to imagine that to permanently ll a vacancy in a
constitutional body like the Commission on Elections vested with important delicate
functions, with remuneration to the members thereof relatively high, and naturally
requiring high and special quali cations of character, training and experience, the Chief
Executive may need time to select the right person. To be sure that his appointment will
be con rmed, he might nd it necessary or advisable to consult the members of the
Commission on Appointments or the leaders thereof. The person he has in mind may
not be immediately available. He may be absent from the capital or if he is present and
is consulted he may need time to decide whether to accept or decline the appointment
tendered or offered. Even if he has decided to accept the offer he may need time to
wind up his private affairs and dispose of his pending legal cases if actively practising
the legal profession. On the other hand, the need for someone to act in the Commission
to ll the vacancy even temporarily, was pressing and imperative. There were only two
remaining Commissioners and one of them had disquali ed himself on some matters
pending hearing and action before the Commission. And the Nacionalista Party was
threatening to ask for his absolute disquali cation in all cases regarding the
presidential elections. Furthermore, at least according to the press, there was an
alleged difference of opinion about some phases of the presidential elections between
these two remaining Commissioners with the possibility, if not probability, of a
deadlock or tie when it came to a vote. The President may have deemed it necessary to
act quickly. All these things may, or might have prompted the Chief Executive to
designate Solicitor General Bautista to act temporarily in the Commission. Of course,
he could have designated someone else, not perhaps better quali ed but less subject
to objection and speculation. But that was the problem, the privilege and the right of the
Chief Executive. I am, as it were, merely thinking out loud.
But I believe and hold that the Chief Executive has the inherent right to designate
one to act temporarily in an o ce to ll a vacancy even in the Commission on Elections.
That the power may be abused is no argument against its existence.
Section 9 of Republic Act No. 296 provides that in case of vacancy in the
Supreme Court or in the event that any of the Justices is absent, disabled or
incapacitated to perform his duties, the requisite number of Justices necessary to
constitute a quorum or to render a judgment in any given case, is not present, the
President of the Philippines upon recommendation of the Chief Justice, may designate
such number of Justices of the Court of Appeals or District Judges as may be
necessary to sit temporarily as Justices of the Supreme Court. Section 27 of the same
Act makes a similar provision for the Court of Appeals. The majority claims that were it
not for those legal provisions, the President would have no power to make
designations for the two Courts. I disagree. I believe that the President has the inherent
power to make temporary designations in the two courts, power necessarily included in
his power to appoint the Justices in said courts. Sections 9 and 27 of Republic Act No.
296 merely limit such power. Without such legal provisions, the President may
designate anyone legally quali ed, even from outside the Judiciary, in order not to
hamper or paralyze the functions of these two tribunals.
But there is another aspect of these two legal provisions. Considering them, the
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Legislature has evidently seen no objection to or anomaly in the President lling
temporarily a permanent vacancy in these two courts by a mere designation. The
Legislature does not see any danger to the independence of the Supreme Court or the
Court of Appeals by the President making a designation to temporarily ll a vacancy
occurring in said Courts, a danger so much emphasized and feared by the majority. I do
not see the danger myself.
In conclusion I hold that the President has the right to designate one to act
temporarily to ll a vacancy where he has the right to make the permanent
appointment, and that in the present case the Chief Executive has the right to designate
the Solicitor General to act temporarily to ll a vacancy in the Commission on Elections
especially under circumstances urgently calling for the services of one to act in said
Commission. Whether the designation was a happy one, advisable or expedient, is
beside the point. As long as the President's designation is valid and constitutional, we
may not pass upon its wisdom or propriety.
If I have dwelt a little extensively in this opinion on the power of designation, it is
because I regard the present case and its implications very important and of far-
reaching consequences. This Court is defining and limiting the power of appointment of
the Chief Executive, not only for the present incumbent but for administrations to come,
and I feel it my duty to explain my views on the point.
Footnotes
1. Formerly, the enforcement and administration of those laws were entrusted to the
Executive Department.