Aytona v Castillo

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-19313 January 19, 1962

DOMINADOR R. AYTONA, petitioner,

vs.ANDRES V. CASTILLO, ET AL., respondents.

R E S O L U T I O N.

BENGZON, C.J.:

Without prejudice to the subsequent promulgation of more extended opinion, the Court adopted today, thefollowing resolutions: .

On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona as ad interimGovernor

of the Central Bank. On the same day, the latter took the corresponding oath.

On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on December 31,

1961, he issued Administrative Order No. 2 recalling, withdrawing, and cancelling all ad interimappointment made

by President Garcia after December 13, 1961, (date when he, Macapagal, had been proclaimed elected by the

Congress). On January 1, 1962, President Macapagal appointed Andres V. Castillo as ad interimGovernor of the

Central Bank, and the latter qualified immediately.

On January 2, 1962, both appointed exercised the powers of their office, although Castillo informed Aytona of his

title thereto; and some unpleasantness developed in the premises of the Central Bank. However, the next dayand thereafter, Aytona was definitely prevented from holding office in the Central Bank.

So, he instituted this proceeding which is practically, a quo warranto, challenging Castillo's right to exercise the

powers of Governor of the Central Bank. Aytona claims he was validly appointed, had qualified for the post, and

therefore, the subsequent appointment and qualification of Castillo was void, because the position was then

occupied by him. Castillo replies that the appointment of Aytona had been revoked by Administrative Order No. 2of Macapagal; and so, the real issue is whether the new President had power to issue the order of cancellation of

the ad interimappointments made by the past President, even after the appointees had already qualified. 1 w p h 1.t

The record shows that President Garcia sent to the Commission on Appointments which was not then insession a communication dated December 29, 1961, submitting "for confirmation" ad interimappointments of

assistant director of lands, councilors, mayors, members of the provincial boards, fiscals, justices of the peace,

officers of the army, etc.; and the name of Dominador R. Aytona as Governor of the Central Bank occupiesnumber 45, between a justice of the peace and a colonel of the Armed Forces.

Another communication of President Garcia bearing the same date, submitted a list of ad interimappointments of

Foreign Affairs officers, judges, fiscals, chiefs of police, justices of the peace, mayors, councilors, etc. number 63of which was that of Dominador R. Aytona for Governor of the Philippines in the Boards of International Monetary

Fund, International Bank for Reconstruction and Development, etc.

A third communication likewise dated December 29, 1961, addressed to the Commission on Appointmentssubmitted for confirmation 124 names of persons appointed as judges of first instance, members of provincial

boards, and boards of government corporations, fiscals, justice of the peace, even one associate justice of this

Court occupying position No. 8 and two associate justices of the Court of Appeals (9 and 10) between anassistant of the Solicitor-General's Office, and the chairman of the board of tax appeals of Pasay City, who in turn

are followed by judges of first instance, and inserted between the latter is the name of another associate justice of

the Court of Appeals.

There were other appointments thus submitted by President Garcia on that date, December 29, 1961. All in all,

about three hundred fifty (350) "midnight" or "last minute" appointments.

In revoking the appointments, President Macapagal is said to have acted for these and other reasons: (1) theoutgoing President should have refrained from filling vacancies to give the new President opportunity to consider

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names in the light of his new policies, which were approved by the electorate in the last elections; (2) thesescandalously hurried appointments in mass do not fall within the intent and spirit of the constitutional provision

authorizing the issuance of ad interim appointments; (3) the appointments were irregular, immoral and unjust,

because they were issued only upon the condition that the appointee would immediately qualify obviously to

prevent a recall or revocation by the incoming President, with the result that those deserving of promotion or

appointment who preferred to be named by the new President declined and were by-passed; and (4) theabnormal conditions surrounding the appointment and qualifications evinced a desire on the part of the outgoing

President merely subvert the policies of the incoming administration.

It is admitted that many of the persons mentioned in the communication to the Commission on Appointments

dated December 29, 1961, did not qualify. There is evidence that in the night of December 29, there was ascramble in Malacaan of candidates for positions trying to get their written appointments or having such

appointments changed to more convenient places, after some last minute bargaining. There was unusual hurry inthe issuance of the appointments which were not coursed through the Department Heads and in the

confusion, a woman appointed judge was designated "Mr." and a man was designated "Madam." One appointeewho got his appointment and was required to qualify, resorted to the rush of asking permission to swear before a

relative official, and then never qualified.

We are informed, it is Malacaan's practice which we find to be logical to submit ad interim appointments

only when the Commission on Appointments is in session. One good reason for the practice is that only those

who have accepted the appointment and qualified are submitted for confirmation. Nevertheless, this time,

Malacaan submitted its appointments on the same daythey were issued; and the Commission was not then in

session; obviously because it foresaw the possibility that the incoming President would refuse to submit later the

appointees of his predecessor. As a result, as already adverted to, some persons whose names were submittedfor confirmation had not qualified nor accepted their appointments.

Because of the haste and irregularities, some judges of first instance qualified for districts wherein no vacancies

existed, because the incumbents had not qualified for other districts to which they had been supposedly

transferred or promoted.

Referring specifically to judges who had not qualified, the course of conduct adopted by Former Chief JusticeMoran is cited. Being ambassador in Spain and desiring to return to this Court even as associate justice, Moran

was tendered an ad interimappointment thereto by President Quirino, after the latter had lost the election to

President Magsaysay, and before leaving the Presidency. Said Ambassador declined to qualify being of the

opinion that the matter should be left to the incoming newly-elected President.

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30, 1961.But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no

more than a "care-taker" administration. He was duty bound to prepare for the orderly transfer of authority the

incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policiesof his successor. The time for debate had passed; the electorate had spoken. It was not for him to use powers as

incumbent President to continue the political warfare that had ended or to avail himself of presidentialprerogatives to serve partisan purposes. The filling up vacancies in important positions, if few, and so spaced to

afford some assurance of deliberate action and careful consideration of the need for the appointment and the

appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night andplanned induction of almost all of them a few hours before the inauguration of the new President may, with some

reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere

partisan effort to fill all vacant positions1 irrespective of fitness and other conditions, and thereby deprive the newadministration of an opportunity to make the corresponding appointments.

Normally, when the President makes appointments the consent of the Commission on Appointments, he has

benefit of their advice. When he makes ad interimappointments, he exercises a special prerogative and is bound

to be prudent to insure approval of his selection either previous consultation with the members of the Commission

or by thereafter explaining to them the reason such selection. Where, however, as in this case, the Commission

on Appointments that will consider the appointees is different from that existing at the time of the appointment2

and where the names are to be submitted by successor, who may not wholly approve of the selections, thePresident should be doubly carefulin extending such appointments. Now, it is hard to believe that in signing 350

appointments in one night, President Garcia exercised such "double care" which was required and expected ofhim; and therefore, there seems to be force to the contention that these appointments fall beyond the intent and

spirit of the constitutional provision granting to the Executive authority to issue ad interimappointments.

Under the circumstances above described, what with the separation of powers, this Court resolves that it must

decline to disregard the Presidential Administrative Order No. 2, cancelling such "midnight" or "last-minute"appointments.

Of course, the Court is aware of many precedents to the effect that once an appointment has been issued, it

cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad interim

appointments (three-hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a setting similar

to that outlined herein. On the other hand, the authorities admit of exceptional circumstances justifying


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revocation3 and if any circumstances justify revocation, those described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointeehas qualified is the latter's equitable rights. Yet it is doubtful if such equity might be successfully set up in the

present situation, considering the rush conditional appointments, hurried maneuvers and other happenings

detracting from that degree of good faith, morality and propriety which form the basic foundation of claims toequitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat

the deadline, whatever the resultant consequences to the dignity and efficiency of the public service. Needless tosay, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be

taken into account.

WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby dismiss the action, withoutcosts.

Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.

Separate Opinions

PADILLA, J., concurring:

Once more this Court has to pass upon and determine a controversy that calls for an interpretation of the

provisions of the Constitution. The facts that gave rise to the petition need not be restated as they are set forth in

opinion rendered for the Court. The question is whether the appointment of a person to a public office by aPresident whose term of office was about to expire or cease is lawful or does not contravene the Constitution; or,

if lawful after the appointee has taken his oath, until when would such appointment be valid and effective. Theconstitutional point involved seems to have been overlooked the framers of the Constitution. It would seem that

the framers, well-meaning persons that they were, never foresaw an eventuality such as the one confronting theRepublic. The framers never thought and anticipated that citizen elevated by the people to such an exalted office

the President of the Republic, would perform an act which though not expressly prohibited by the Constitution and

the law, ought not to be done, since a sense of propriety would be enough to stop him from performing it.

The petitioner invokes section 10, paragraph 4, article VII, of the Constitution which provides that

The President shall have the power to make appointments during the recess of the Congress, but such

appointments shall be effective only until disapproval by the Commission on Appointments or until the next

adjournment of the Congress.

Under these constitutional provisions there seems to be no doubt that the President may make the appointment,

and if approved by the Commission on Appointments, it would unquestionably be lawful, valid and effective, but if

disapproved or not acted upon by the Commission on Appointments then the appointment becomes ineffectualand the appointee ceases and can no longer perform the duties of the office to which he had been appointed.

It is urged that the petitioner's appointment having been made by the President during the recess of the Congress

and he having taken his oath, the appointment is lawful, valid and effective until disapproval by the Commissionon Appointments or until the next adjournment of the Congress should the Commission on Appointments fail to

act on it.

Ad interimappointments that the President may make during the recess of the Congress are those made during a

period of time from the adjournment of the Congress to the opening session, regular or special, of the same

Congress. In other words, if the President had convened in a special session the fourth Congress whose termwas to expire on the 30th of December 1961 and during such session the ad interim appointments had been

confirmed by the Commission on Appointments there would be little doubt that the appointments would be lawful

and valid.

The government established by the Constitution is one of checks and balances to preclude and preventarrogation of powers by officers elected or appointed under it.

Under the provisions of the Constitution "The term of office of Senators shall be six years and shall begin on the

thirtieth day of December next following their election."1 And "The term of office of the Members of the House of

Representatives shall be four years and shall begin on the thirtieth day of December next following their

election."2 Under section 10, paragraph 4, article VII, of the Constitution, above quoted, the President may makeappointments during the recess of the Congress, "but such appointments shall be effective only until disapproval

by the Commission on Appointments or until the next adjournment of the Congress." .

The term "recess", in its broadest sense, means and refers to the intervening period between adjournment of aregular session of one hundred days exclusive of Sundays, or of a Special session which cannot continue longer

than thirty days, and the convening thereof in regular session once every year on the fourth Monday of January

or in special session to consider general legislation or only such subjects as he (the President) may designate.3


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And such intervening period refers to the same Congress that had adjourned and was to be convened. Suchintervening period cannot refer to two different Congresses, one that has adjourned and one newly chosen or

elected to meet in regular session as provided for by the Constitution, or in special session by the call of thePresident.

The term of the President ... shall end at noon the thirtieth day of December following the expiration four

years after (his) election and the term of (his) successor shall begin from such time.4

If the ad interimappointments made by the President during the recess of the Congress are effective only until

disapproval by the Commission on Appointments or until the next adjournment of the Congress a limitation on

the power of the President there is a cogent and strong reason for holding to be the intent of the framers of theConstitution that such appointments made by him ceased to be valid and effective after the term of the Congress

existing at the time of the making of such appointments had ended or expired. The end or expiration of the of theCongress existing at the time of the making of the ad interimappointments by the President is a stronger cause or

reason for the lapse or ineffectuality of such appointments than "the next adjournment of the Congress." Sincethat Congress no longer exists and hence can no longer convene and then "adjourn." The effectivity and validity

of the appointment of the petitioner as Governor of the Central Bank ceased, lapsed and expired on thirtieth of

December 1961. He is no longer entitled hold the office to which he had been appointed. My vote, therefore, is forthe denial of the petition.

Dizon, J., concurs.

I concur with the foregoing concurring opinion of Justice Padilla, the same being based on an additional ground

justifying denial of the petition under consideration.

BAUTISTA ANGELO, J., concurring: .

In addition to the reasons stated in the resolution adopted by this Court on January 19, 1962, I wish to expressthe following views: .

1. The "midnight appointments" made by President Garcia were extended by him under Section 10, Paragraph 4,

Article VII of the Constitution which provides: "The President shall have the power to make appointments duringthe recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on

Appointments or until the next adjournment of the Congress." It is clear that these appointments can only bemade during the recess of Congress because they are ad interimappointments.

The term "recess" has a definite legal meaning. It means the interval between a session of Congress that has

adjourned and another of the same Congress. It does not refer to the interval between the session of oneCongress and that of another. In that case the interval is not referred to as a "recess" but an adjournment sine

die. Thus, in the case of Tipton v. Parker, 71 Ark. 194, the court said: "The 'recess' here referred to by Judge

Cooley means the intermission between sittings of the same body at its regular or adjourned session, and not to

the interval between the final adjournment of one body and the convening of another at the next regular session.When applied to a legislative body, it means a temporary dismissal, and not an adjournment sine die." Since the

appointments in question were made after the Fourth Congress has adjourned sine dieand ceased to function on

December 30, 1961, they cannot partake of the nature of ad interimappointments within the meaning of the

Constitution.

2. The Commission on Appointments under our constitutional set-up is not continuing body but one that co-exists

with the Congress that has created it. This is so because said Commission is a creation of the Senate and of theHouse of Representatives. While the Senate is a continuing body, the House ceases at the end of its fourth year.

It cannot therefore be continuing it being a creation of a body half of which is alive and the other half has ceasedto exist. This theory can also be gleaned from the proceedings of the constitutional convention.

Thus, the preliminary draft of the Philippine Constitution provides for a permanent Commission and for the holding

of sessions of the Commission even during the recess of Congress. After mature deliberation the proposal was

defeated and a substitute was adopted which is now embodied in Article VI, Section 12, of our Constitution. As amatter of fact, as finally adopted, the Commission on Appointments has to be organized upon the convening of a

new Congress after the election of the Speaker of the House of Representatives or of the President of the Senate,as the case may be, as provided for in Section 13, Article VI of the Constitution (Article VII, Preliminary Draft of the

Constitution, Vol. 2, Aruego: The Framing of the Constitution, pp. 982, 987).

An ad interimappointment, to be complete, needs to be submitted to the Commission on Appointments one the

same is constituted. This is reflected in the Constitution when it provides that "such appointments shall be

effective only until disapproval by the Commission on Appointments or until the next adjournment of theCongress" (Section 10, Paragraph 4, Article VII). This mean that it must be submitted to the Commission onAppointments of the Congress that has created it. It cannot be submitted to the Commission on Appointments of a

different Congress. Since the appointments in question were submitted to the Commission on Appointmentswhich ceased to function on December 30, 1961, they lapsed upon the cessation of said Commission.

Consequently, they can be recalled by the new Chief Executive.


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3. An ad interim appointment is not complete until the appointee takes the oath of office and actually takes

possession of the position or enters upon the discharge of its duties. The mere taking of the oath of office without

actual assumption of office is not sufficient to constitute the appointee the actual occupant thereof who may notbe removed therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d. 584). The case of Summers v.

Ozaeta, 81 Phil., 754, cannot be cited as a precedent as to when an ad interimappointment becomes permanent

and binding. That case involves a cadastral judge who was given an ad interimappointment as judge at large.

After assuming the office and discharging his duties, his appointment was not confirmed. He claimed that he couldstill revert to his former position as cadastral judge. True, this Court made a statement therein that an ad interim

appointment becomes permanent after taking the oath of office, but such statement is merely an obiter dictum

because the case could have been decided on the doctrine that, having accepted an incompatible office,petitioner was deemed to have abandoned the position of cadastral judge.

In relying on certain cases for the proposition that once an appointee has taken the oath of office his appointment

becomes irrevocable petitioner fails to consider that in said cases there had either been an actual discharge ofduty and actual physical possession or assumption of office following the oath-taking as to constitute the

appointee the occupant of the position from which he cannot be removed without cause. Even the case ofMarbury v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69, cannot be invoked as a precedent, for there the

appointees were merely nominated and their nominations confirmed by the Commission on Appointments even if

they have later taken their oath of office. Certainly, they can no longer be deprived of their appointments for thenthe executive would be acting in disregard of the confirming body which is a coordinate and independent body not

subject to his control.

Since the appointments in question were made not in the light of the views herein expressed, I am of the opinion

that they did not ripen into valid and permanent appointments and as such were properly recalled by the newChief Executive.

CONCEPCION, J., concurring in part and dissenting in part: .

It is well settled that the granting of writs of prohibition and mandamusis ordinarily within the sound discretion of

the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the reliefis clear (55 C.J.S. 25, 29, 73 C.J.S. 18). Insofar as the majority resolution relied upon discretion and the equities

of the case in denying said writs, I concur, therefore, in the aforementioned resolution.

However, I cannot see my way clear to subscribing the observations therein made representing the motivesallegedly underlying petitioner's appointment and that of many others who are not parties in this case, and

justifying the revocation of such appointments. My reasons, among others, are: .

1. Save where the incumbent has a temporary appointment or is removable at the will of the appointing power, anappointment once complete, by the performance of all acts required by law of the appointing power, is

irrevocable.

An appointment to office may be revoked at any time before the appointment becomes final and complete,but thereafter unless the appointee is removable at the will of appointing power. For the purpose of this

rule, an appointment to office is complete when the last act required of the person or body vested with the

appointing power has been performed. Where by constitutional, statutory, or other legal provision it isrequired that certain steps be taken to make effective appointment, it has been held that the appointment

becomes complete beyond the possibility of recall when the last of the prescribed steps is taken, and that,where no method of appointment is provided, an appointment does not become effective and beyond recall

until the appointing officer by some act or word evinces a final intent to vest the appointee with title to theoffice." (67 C.J.S., pp. 161-162) .

After the act of appointment is complete, the appointing authority may not revoke its former appointment

and make another. And appointment to office is complete when the last act required of the person or body

vested with the appointing power has been performed. (56 C., p. 954) .

In all jurisdictions where appointment to office is regarded as an executive function, as here, an

appointment to office once made is incapable of revocation or cancellation by the appointing executive in

the absence of a statutory or constitutional power of removal. Barrett v. Duff 114, Kan. 220; 217 P. 918;People v. Mizner, 7 Cal. 519, State v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006; Draper v.

State, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D, page 305, Annotation." (McChesney v. Sampson, 23S.W. 2d., 584) .

May an appointment be revoked by reason of error or fraud? This question was taken up in Ex rel Coogan vs.

Barbour (22 A 686) and Ex rel Scofield vs. Starr (63 A 512). The first involved a City Charter providing that itscommon council shall, in joint convention, appoint a prosecuting attorney. In such convention, Coogan obtained amajority of the votes cast and of the convention. Upon announcement of this result, a member of the convention

offered a resolution declaring Coogan elected, but the resolution was defeated. Then, two resolutions wereoffered and approved: one declaring that the ballots taken were null and of no effect by reason of errors in the

same and another declaring Barbour elected prosecuting attorney. The issue was who had been appointed


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thereto. The court held that it was Coogan, he having obtained a clear majority and there having been no error orfraud in the voting, although it did not deny the power of the convention to correct errors and to nullify the effects

of fraud in the voting by invalidating the same and calling another election, had the proceedings been tainted withsuch error or fraud.

The second case referred to a similar provision in a city charter, to the effect that appointments by the common

council shall be by ballot and that the person receiving a plurality of ballots shall be elected. The first ballotingtaken for the election of the city surveyor of Brigeport resulted in 25 ballots being cast. It was announced that

there was one ballot more than members voting, and that there were 13 ballots for Scofield, 11 for Starr and one

blank ballot. Scofield maintained that this result amounted to his appointment precluding the council from taking a

new ballot but such pretense was rejected. Inasmuch as the number of ballots cast exceeded the number ofpersons voting, the council was justified in believing that the proceeding was not free from suspicion of fraud ormistake in the voting and, accordingly in taking another vote.

In both cases, the fraud or mistake alluded to referred to the manner of voting or of counting the ballots cast, not

to the intent of the voters in choosing a particular appointee.

2. An ad interim appointment, made during a recess of Congress, is complete and irrevocable upon the

performance of the last act required by law from the appointing power, even without previous notice to theappointee, or acceptance by him, or without subsequent action of the legislative organ that may terminate its

effectivity.

In the case of appointment made by a single executive such as a governor, mayor, etc., it is undisputedthat the appointment once made is irrevocable.

x x x x x x x x x

Where an appointment subject to confirmation by the senate is made by a governor during a recess of the

senate, ... the question arises as to whether such an appointment may be reconsidered and withdrawn bythe governor before it is acted upon by the Senate.

x x x x x x x x x

In Barrett v. Duff(1923) 114 Kan. 220, 217 Pac. 918, where appointments made by the governor during a

recess of the legislature, which appointments could not be confirmed by the senate as required by law untilthe next session of that body, were revoked by the governor's successor, and other persons were

appointed to the offices, such action by him being taken after the senate had convened and had taken

under advisement the confirmation of the persons first appointed to the offices, but before the senate hadtaken any definite action with regard to such confirmation, and the senate, confirmed the first appointee,

but, despite this act of the senate, commissions were issued by the governor to the second appointee, itwas held, in reliance upon the terms of the statutes which provided that the governor should 'appoint'

persons to such offices with the advice and consent of the senate, as distinguished from the provision ofthe Constitution of the United States governing appointments by the President, which provides that the

President shall 'nominate' and, by and with the advice and consent of the senate, shall 'appoint' persons to

office, that the act of the governor in making the firstappointments was finaland exhausted the power of

the governor's office in that regard unless and until the appointments were rejected by the senate, and that,

therefore, the persons appointed by the first governorwere entitled to the office. In the words of the court,

'The power of the governor having been exercised, he had no further power of the governor having beenexercised, he had no further control over the respective offices unless and until the appointees had been

rejected by the senate.' In reaching this result, the court emphasized the difference between a nomination

and an appointment, holding that, where the statute relating to appointments by the governor with theconsent of the senate provides that the governor shall appoint persons to the office with the consent of the

senate, rather than merely nominate persons for consideration by the senate, the appointment is final and

conclusive without confirmation. ... .

Likewise in McChesney v. Sampson(1930) 232 Ky 395, 23 S.W. (2d.) 584, the act of governor in making a

recess appointment was held to be not merely a nominationsubject to revocation by the governor at any

time prior to action thereon by the senate, but a final and irrevocableappointment subject only to rejection

by the senate. In support of this result, it was said: 'It is urged that appointment to the office consists of two

separate acts, one by the governor and one by the senate, and until both have acted there is no

appointment such as to bring the incumbent within the protection of the law. Even so, the two powers donot act concurrently, but consecutively, and action once taken and completed by the executive is not

subject to reconsideration or recall. ... The fact that the title to the office, and the tenure of the officer, are

subject to the action of the senate, does not render incomplete the act of the chief executive in making theappointment. The appointment alone confers upon the appointee for the time being the right to take and

hold the office, and constitutes the last act respecting the matter to be performed by the executive power.' .

x x x x x x x x x


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In People ex rel. Byder v. Mizner(1857) 7 Cal. 519, in holding that an appointment made by a governor to

fill an office which had expired during a recess of the legislature was not merely an appointment to fill a

vacancy which would expire at the end of the next session of the legislature, but was an appointment for a

full term, and that the act of the governor during a subsequent session of the legislature, in appointing

another to the office and asking his confirmation by the legislature, was unauthorized and void, it was said

that, the power of the executive having been once exercised, he had no further control over the office until

the appointee has been rejected by the senate." (89 ALR, pp. 138, 139, 140.) .

3. The irrevocability of the ad interimappointment adverted to above becomes more apparent when we consider

that the House, Commission on Appointments or other agency of Congress charged with the function of

terminating the effectivity of such appointment, may act thereon, by approving or disapproving the same, eventhough the Executive had not submitted or forwarded it to said House, Commission or agency of Congress, andeven though either the outgoing or the incoming Executive shall have submitted for confirmation the name of a

subsequent appointee in lieu of the first one..

This was the situation met in People ex rel, Emerson vs. Shawver (30 Wyo 366, 222 Pac. 11). The facts therein

were: On July 1, 1919, Governor Carey of Wyoming appointed Emerson as state engineer, to fill the vacancy

caused by the resignation of its incumbent. Upon the expiration of the latter's term, Governor Carey reappointedEmerson for a full term of six (6) years, from and after April 1, 1921. This last appointment was confirmed by the

state legislature at its next session in 1923. Prior thereto, however, Governor Carey's term had expired and his

successor had appointed Shawver as state engineer. Thereupon Shawver ousted Emerson from such office. Itwas held that Emerson had a better right thereto; that his appointment in 1921 was a completed appointment,

requiring no action by the Senate to entitle him to hold said office; that a recess appointment once made by "the

executive is not subject to reconsideration or recall, "even though not as yet confirmed by the Senate, inasmuchas," the appointment alone confers upon the appointee for the time being the right to take and hold the office, and

constitutes the last act respecting the matter to be performed by the executive power"; and that, although theterm of Governor Carey had expired and neither he nor his successor had forwarded Emerson's appointment to

the Senate for confirmation or requested the Senate to act upon said appointment, the same had been validly

confirmed by said body, for .

The provision as to the office here in question found in the Constitution does not say that the appointment

made by the Governor shall be confirmed by the Senate when requested by the former, or upon a

communication by him submitting the matter to the Senate. And we perceive no substantial reason foradding by construction any such restriction upon the Senate's right to act. (People v. Shawver, 222 P. 11;

see, also, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382; State v. Williams, 20 S.C. 13; Richardson v.Henderson, 4 Wyo. 535, 35 Pac. 517, and other cases cited in the Shawver case.) .

4. The foregoing goes to show, also, that the question whether the Commission on Appointments is or is not a

continuing body can not affect the determination of the case. Besides, the constitutional provision making an ad

interimappointment, if not disapproved by the Commission on Appointments, effective only until the next

adjournment of Congress, clearly indicates that such Commission must have an opportunity to approve or

disapprove the appointmentand that its inaction, despite such opportunity, at the session of Congress next

following the making of the appointment during which it could have met, and, probably, did meet must beunderstood as an expression of unwillingness to stamp its approval upon the act of the executive. No such

opportunity exists when the outgoing Congress has not held any session, regular or special after the making ofthe appointment and before the expiration of the term of said Congress, and the new Congress has not, as yet,

organized itself or even met.

5. The American rule concerning irrevocability of appointments is bolstered up in the Philippines by Section 4 of

Article XII of the Constitution, which provides that "no officer of employee in the Civil Service shall be removedexcept for cause as provided by law." (Article VII, Section 4.) .

In fact, in his concurring opinion in Eraa vs. Vergel de Dios(85 Phil., 17), our distinguished Chief Justice pointed

out that the revocation of an appointment, if feasible, "should be communicated to the appointee before the

moment he qualified," and that "any revocation thereafter, is tantamount to removaland must be judged

according to the rules applicable to the removal" (emphasis ours). In the present case, the revocation of

petitioner's appointment was not communicated to him before he qualified by taking his oath of office. It is noteven claimed that any of the statutory causes for removal of petitioner herein exists, or that the procedure

prescribed for such removal has been complied with.

6. Once an appointee has qualified, he acquires a legal, not merely equitable right, which is protected not only bystatute, but, also by the Constitution, for it cannot be taken away from him, either by revocation of the

appointment or by removal, except for cause, and with previous notice and hearing, consistently with said Section4 of Article XII of our fundamental law, and with the constitutional requirement of due process (Segovia vs. Noel,47 Phil., 547; Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See also, People ex rel Ryan v. Green, 58 N. v. 295; People

vs. Gardner, 59 Barb 198; II Lewis Sutherland Statutory Construction, pp. 1161 and 1162; Mechem on PublicOfficers, Sec. 389; 22 R. C. L. 377- 378; 25 Am. Dec. 690-691, 703).

7. The case of Tipton vs. Parker (74 S. W., 298) has been cited in support of the theory that Congress of the


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Philippines was not in "recess" on December 29, 1961, and that, accordingly, ad interimappointments could not

validly be made in such date. The question involved in said case was whether a committeeof the Senate of

Arkansas could be authorized by the same to function after the adjournment sine dieof the regular session of the

state General Assembly. The State Supreme Court considered as decisive authority the view expressed by JudgeCooley, to the effect that a legislative committee "has no authority to sit during a recess of a House which

appointed him, without its permission to that effect". The issue thus hinged on the meaning of the term "recess"as used by Judge Cooley. Resolving this question, said court held that the recess referred to by Judge Cooley

was "only the intermission between the sittings of the same body at its regular or adjourned session and not to the

interval between the final adjournment of one body and the convening of another at the next regular session"..

In this connection, it should be noted that, as an agency of the Senate, the committee involved in said case couldnot operate for its principal beyond the latter's term. Moreover, under the Constitution of Arkansas, the regular

biennial session of the General Assembly could not exceed 60 days, unless by a vote of 2/3 of the members ofeach of the two Houses of the legislature. Inasmuch as the Senate could not, without the concurrence of the

House, directly extend the period of its regular session, neither could it, without such concurrence, indirectly

extend said period, by granting its aforementioned committee the authority to function beyond said period. Asstated by the Court "the committee, being the mere agency of the body which appointed it, dies when the body

itself dies, unless it is continued by law", which the Senate may not enact, without the concurrence of the House..

The decision in said case did not seek to define the meaning of the term "recess" as used in any constitution orstatute. It did not even refer to the authority to make appointments during "recess". It has absolutely no bearing,

therefore, on the issue before us.

Upon the other hand, Dr. Jose M. Aruego, a prominent member of the constitutional convention, says, in his workon "The Framing of the Philippine Constitution" (Vol I, pp. 434-435), that the draft of the provision on ad interim

appointments by the President, as submitted by the corresponding committee, followed the principles of the Jones

Lawand that the recommendation of the committee was readily approved on the floor of the convention, although

the committee on style gave said provision its present phraseology. Pursuant to the Jones Law, "appointmentsmade while the Senate is not in session shall be effective either until disapproval or until the next adjournment of

the Senate". Hence, the term "recess" appearing in Section 10(4) of Article VII of our Constitution should beconstrued to mean "while Congress is not in session" and this is confirmed by the practice consistently observed

in the Philippines for time immemorial, as well as the ad interimappointment extended by President Macapagal to

respondent Castillo.

8. The case of McChesney vs. Sampson(23 S. W. 2d. 584) has, also, been invoked in support of the proposition

that "an ad interimappointment is not complete until the appointee takes the oath of office and actually takes

possessionof the position or enters upon the discharge of its duties" and that, before such actual taking ofpossession, though after the oath taking, the appointee may be removed without cause.

We have not found in said case anything justifying such claim. The issue in said case was whether a state

governor could recall an unconfirmed appointment of McChesney to the state textbook commission when there

had been no session of the Senate subsequent to the appointment, and such issue was decided in the negative.

Although, in addition to accepting the appointment, McChesney had qualified and exercised the function of theoffice, the decision of the Court clearly indicates that it was not necessary for him either to discharge the duties of

the office or even to take the oath of office, in order to render his appointment irrevocable. The Court explicitlydeclared that the appointment, once "completed by the executive is not subject to reconsideration or recall;" that

the appointment "is complete when the appointing authority has performed the acts incumbent upon him to

accomplish the purpose;" and that in the case of recess appointments, like that of McChesney," the appointment

aloneconfers upon the appointee for the time being the right to take and hold the office and constitutes the lastact respecting the matter to be performed by the executivepower" completing the appointment and rendering the

same irrevocable.

In short, the McChesney case is authority for the petitioner herein.

9. Most, if not all appointments made by the President have two (2) aspects, namely, the legal and the political.The first refers to his authority to make the appointment. The second deals with the wisdom in the exercise of

such authority, as well as with its propriety. Whether given vacancy or number of vacancies should be filled, orwho among several qualified persons shall be chosen, or whether a given appointment or number of appointment

will favor the political party to whom the power of appointment belongs and will injure the interest of a rival political

party and to what extent, are, to my mind, essentially and typically political matters. Hence, I believe that thequestion whether certain appointments should be sanctioned or turned down by reason of the improper, immoral

or malevolent motives with which said matters were allegedly handled is, likewise, clearly political, and as such, itsdetermination belongs, not to the courts of justice (Vera vs. Avelino, 77 Phil., 192, 205; 16 C.J.S 689-690;

Willoughby on the Constitution, Vol. III 1326-1327), but to the political organ established precisely to check

possible abuses in the exercise of the appointing power the Commission on Appointments.

Indeed, I can hardly conceive of any question more patently and characteristically political than this one, or more

appropriate for determination of said body. Neither the possible or probable control thereof by members of the


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Nacionalista Party nor the number of offices or appointments involved can affect the nature of the issue. Surely,its political character is the same whichever political party may have the largest number of votes in the

Commission on Appointments. The big number of said appointments merely tend to make more manifest thepolitical complexion thereof and its non-justifiable nature.

10. In Osmea vs. Pendatum (L-17144, October 28, 1960), we refused to disturb the action of the House of

Representatives in suspending a member thereof who had made derogatory imputations against the President

of the Philippines upon the ground that such imputations constituted a breach of the courtesy due to acoordinate branch of the Government. Yet, in the present case, imputations similarly derogatory to the same

branch of the Government are, in effect, made in the majority resolution.

I cannot see how such imputations can be reconciled with the position taken by this Court in the Osmea case

and in other cases (Barcelona vs. Baker, 5 Phil., 87; Severino vs. Governor-General, 16 Phil., 366; Abueva vs.

Wood, 45 Phil., 612; Alejandrino vs. Quezon, 46 Phil., 85; Mabanag vs. Lopez Vito, 78 Phil., 1; Cabili vs.

Francisco, L-4638, May 8, 1951) in which it "fastidiously observed" the theory of separation of powers (Osmeavs. Pendatum, supra). Thus, in Santos vs. Yatco(55 Off. Gaz. 8641), in which a department head was sought to

be enjoined from electioneering, in view of the explicit provision of the Civil Service Act of 1959 (Republic Act No.2260, section 29), prohibiting all officers and employees in the civil service, "whether in the competitive or

classified, or non-competitive or unclassified service," from engaging directly or indirectly in partisan political

activities or taking part in any election except to vote, we held that the issue therein raised was one of "improprietyas distinguished from illegality," and that, as such, it "is not justiciable by this Court." In Mabanag vs. Lopez Vito

(78 Phil., 1), we refused to decide, upon the same ground, whether specified numbers of votes constituted three-fourths of all members of each House of Congress. In Vera vs. Avelino(77 Phil., 192), we not only declared that

"the judiciary is not the repository of remedies for all political or social evils," but, also, quoted with approval thestatement, made in Alejandrino vs. Quezon(46 Phil., 81), to the effect that "the judicial department has no power

to revise even the most arbitrary and unfair action of the legislative department, or of either House thereof, taken

in pursuance of the power committed exclusively to that department by the Constitution." (Emphasis ours.) .

11. In the present case, we have completely reversed our stand on the principle of separation of powers. We

have inquired into the motives of the Executive department in making the appointments in question, although it iswell settled, under the aforementioned principle, that: .

Generally courts cannot inquire into the motive, policy, wisdom, or expediency of legislation.

The justice, wisdom, policy, necessity, or expediency, of a law which is within its powers are for the legislature,and are not open to inquiry by the courts, except as an aid to proper interpretation." (16 C.J.S. 471-478) .

If this is true as regards the legislative branch of the government, I can see no valid reason, and none has beenpointed out, why the same norm should not govern our relations, with the executive department. However, we

have not merely disregarded such norm. We are, also, in effect, restraining the Commission on Appointments an organ of a coordinate, co-equal branch of the Government from acting on the questioned appointments.

What is more, we are virtually assuming in advance that said body which has not been organized as yet andwhose membership is still undetermined will not act in harmony with the spirit of our Constitution.

12. It is trite to say that certain moral and political aspects of the issue before us cannot but produce a strong

aversion towards the case of petitioner herein and the hundreds of others appointed under the same conditionsas he was. Although members of the bench must always endeavor to minimize the influence of emotional factors

tending to affect the objectivity essential to a fair and impartial appraisal of the issues submitted for their

determination, it is only natural and, I venture to add, fortunate (for, otherwise, how could they hope to dojustice to their fellowmen?) that they should basically react as other members of the human family. This is

probably the reason why Justice Douglas of the Federal Supreme Court of the U.S., said, in Abel v. U.S. (4Lawyers Edition, 2d, 668, 688) :

"Cases of notorious criminals like cases of small, miserable ones are apt to make bad law. When guilt

permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by

constitutional procedures. .... The harm in the given case may seem excusable. But the practicesgenerated by the precedent have far-reaching consequences that are harmful and injurious beyond

measurement.".

Let us hope that no such consequences will flow from the precedent established in this case.

BARRERA, J., dissenting:

The instant case started with a simple petition for prohibition and mandamus with preliminary injunction institutedby petitioner Aytona who claims to have been duly appointed ad interim Governor of the Central Bank, against

respondent Castillo who, allegedly accompanied by his correspondent Colonel Gutierrez and a host of heavilyarmed Philippine Constabulary Rangers, interfered with and prevented the petitioner in the discharge of his duties

and prerogatives as such Governor of the Central Bank. During the hearing, however, and immediately thereafter,

a great amount of extraneous matter affecting persons not parties to the proceedings has been introduced intothe case and a veritable avalanche of memoranda after memoranda and manifestations after manifestations


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of another authority, the executive, to perform its functions after the expiration of that other body. Non-existenceof the first does not mean non-existence of the other.

It is to be noted that the different counsel advocating the cause of the respondents are not even agreed in the

application of their interpretation of the word "recess". Some of them argue that the interregnum which theycontend is not recess, compromises the entire period between the adjournment of the 4th Congress in May, 1961

and the opening of the 1st session of the first session of the 5th Congress on January 22, 1962, so that all ad

interimappointments extended during this period are null and void. Others claim that such interregnum is that

period between December 13, 1961, date of adjournment of the last session of the 4th Congress, and January

22, 1962. It seems that President Macapagal is of this same view because his administrative Order No. 2

specifically refers to all appointments made after December 13, 1961. Still others, at least one, advanced thetheory during the oral argument that the banned period is that between the adjournment of the 4th Congress in

May, and December 30, 1961, excluding therefrom the period between this last date and January 22, 1962.Obviously, this theory was advanced in an effort to lend validity to the appointments recently made by President

Macapagal, for if the entire period between May or December, 1961 to January 22, 1962 is held not a recess, butan adjournment sine die, then all appointments heretofore made by the present Chief Executive would suffer the

same defect as those extended by former President Garcia. This last argument is unavailing because it, likewise,

is untenable, tested upon the same authority cited by counsel, i.e., that the term "recess" means "the intermissionbetweensittings of the same body." Since the 5th Congress has not as yet even convened, the period between

December 30 and January 22 can not be a recess of the 5th Congress because it, definitely, is not an

intermission between sittingsof the same body.

In the circumstances, it seems it is an over-statement to say that the term "recess has a definite legal meaning in

the sense attributed to it in the Tipton vs. Parkercase. The confusion in the minds of the several counsels for therespondents as to the application of the alleged meaning of the term, indicates a belabored effort on their part toimpute a meaning to satisfy their case. Upon the other hand, we find in "Hinds Precedents of the House of

Representatives" (Vol. 5, pp. 852-853), a legislative interpretation by the United States Senate made during the

discussion of the term "recess of the Senate" in connection with the President's1 power to make appointments, asfollows: .

The word 'recess' is one of ordinary, not technical, signification, and it is evidently used in the constitutional

provision in its common and popular sense. It means in Article II, above referred to, precisely what it means

in Article III, in which it is again used. Conferring power upon the executive of a State to make temporaryappointment of a Senator, it says: .

And if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the

executive thereof may make temporary appointments until the next meeting of the legislature, which shallthen fill such vacancies.' .

It means just what was meant by it in the Article of Confederation, in which it is found in the following

provision": .

The United States in Congress assembled shall have authority to appoint a committee to sit in the recess ofCongress, it be denominated a committee of the States, and to consist of one delegate from each State.' .

It was evidently intended by the framers of the Constitution that it should mean something real, not

something imaginary; something actual, not something fictitious. They used the word as the mass ofmankind then understood it and now understand it. It means, in our judgment, in this connection the period

of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or inextraordinary session for the discharge of executive functions; when its members owe no duty of

attendance; when its Chamber is empty; when, because of its absence, it cannot receive communicationsfrom the President or participate as body in making appointments." .

The Attorney General of the United States was also of this view when he stated: .

The recess of the Senate during which the President shall have power to fill a vacancy that may happen,

means the period after the final adjournment of Congress for the session and before the next session

begins; while an adjournment during a session of Congress means a merely temporary suspension ofbusiness from day to day, or for such brief periods of time as are agreed upon by the joint action of the two

houses. The President is not authorized to appoint an officer during the current holiday adjournment of theSenate, which will have the effect of an appointment made in the recess occurring between two sessions of

the Senate." (President - Appointment Officers - Holiday Recess, 1901, 23 Op. Atty. Gen. 599, (U.S.C.A.

Const. Art. 2, Sec. 2[2]..

It is worthwhile to note that our Constitution in paragraph 4, Section 10 of Article VII speaks of "recess" withoutmaking any distribution between the sessions one congress and the sessions of another. And it is trite to say that

when the law makes no distinction, no distinction should be made, especially if to do so would result in a strainedinterpretation thereof and defeat the evident purpose of the framers of the Constitution - in this instance, to render

it certain that at times there should be, whether the Congress is in session or not, an officer for every office,entitled to discharge the duties thereof. (5 Hinds, op. cit., p. 853.) .


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II. Lapsing of Aytona's Appointment: .

It is contended for the respondents that since 12 members of the Commission on Appointments ceased to be

such upon the expiration of their term of office at midnight of December 29, 1961, the Commission onAppointments likewise ceased to exist on the theory that creation can not exist beyond the life of its creator at

least with respect to one-half of its members. This seems to stem from the wrong notion that the Commission onAppointments is a creature of the Congress. This confuses the Commission on Appointments as a constitutional

body with its members. The body continued to exist, but only its membership changes periodically. When the

Constitution provides in Section 13 of Article 6 thereof that "the Electoral Tribunals and the Commission on

Appointments shall be constituted within 30 days after the Senate and the House of Representatives shall havebeen organized with the election of their President and Speaker, respectively", it did not mean that the Senateand the House of Representatives thereby create said bodies, no more than the President can be said to create

the Supreme Court by appointing the Justices therein. It simply ordained that the Commission be constituted or

organized by electing the members thereof, whose positions have already been created in virtue of Section 12 ofthe same Constitution. To hold the Electoral Tribunals and the Commission on Appointments are non-existing

during the period from December 30, 1961 to January 22, 1962 (and during the corresponding period every fouryears thereafter) will result in an absurdity and a situation destructive of the normal processes provided in the

Constitution. One of such absurd results would be that no electoral protest against any elected and proclaimedcongressman or senator can be legally filed with the Electoral Tribunals within the period prescribe by their rules,

that is, within fifteen days following the proclamation of the results of the election, which period falls within the time

when the Electoral Tribunals (as is the case of Commission on Appointments) are allegedly non-existent.

The proceedings in the Constitutional Convention are cited to support the theory that the Commission onAppointments is not a permanent commission. A review of the records, however, of that convention reveals that

what was intended in the proposed draft was to authorize the Commission on Appointments to hold sessions evenwhen the Congress is not in session. The mere fact that such a proposal was defeated and, consequently, the

word "permanent" was not adopted in the final text, does not import that the Constitution meant to give an off and

on existence to the Commission on Appointments lapsing every four years when the twelve of its members ceaseto be such. On the contrary, it seems more logical to hold that the legal existence of the Commission as well as

the Electoral Tribunals continue irrespective of the vacancies that may exist in the membership thereof. It is forthis reason that the personnel of these bodies do not cease periodically, but continue to perform their duties in

their respective offices for which they are legally paid their salaries by the government. It seems clear, therefore,that the Commission on Appointments did not lapse on December 29, 1961. Neither did the appointment of

Aytona lapse on that date because the same could not be acted upon by the Commission on Appointments during

the recess of the Congress.

III. May the appointment of Aytona be legally recalled or withdrawn after he has qualified for the position to which

he was appointed? .

Precedents are to the effect that when once an appointment has been extended by the Chief Executive who, as is

provided in our Constitution, has the sole power of appointment subject only to the consent of the Commission onAppointments, and the appointee has accepted the appointment, the same becomes complete and the appointing

power can not withdraw it except in cases where the tenure of the appointee is at the Chief Executive's pleasure

or upon grounds justifying removal and after due process. This is not because the appointment constitutes acontract (for truly a public office can not be subject of any contract), but because of the provisions of the

Constitution itself to the effect that "no officer or employee in the Civil Service shall be removed or suspendedexcept for cause as provided by law." If, therefore, the recall or the withdrawal of the appointment of Aytona was

not authorized by law, then his assumption of the functions of his office on January 2, 1962 was clearly within his

legal right and the interference of Castillo, aggravated by the assistance or at least the presence of members ofthe Armed Forces, was clearly unlawful.

The foregoing disposes, in my opinion, the legal issue and the rights of the parties in the present case. But

against these, to me, clear mandates of the Constitution and the legal and judicial precedents, respondents haveappealed to this Court for it to exercise "judicial statesmanship" invoking the spirit of the Constitution. It is claimed

that there was a manifest abuse of power by the outgoing President in extending, on the eve of the expiration ofhis term, some three hundred and fifty ad interim appointments to fill an equal number of vacancies in the

different branches of the government; that no proper consideration was given of the merits of the appointees, it

appearing that in the case of at least some of the appointees to the judiciary, their assurance of an immediateassumption of office or the taking of oath was made a condition precedent to the appointments, and that there

was a wild scramble in Malacaan among the appointees on the night of December 29. We are scandalized by

this and expect the Court to apply the remedy. What of the proceedings in Congress during the last day ofsession when bills after bills are passed in a manner not too dissimilar to the described scene in Malacaan? Can

the Supreme Court be expected to correct this too by declaring all such laws as invalid just as we are asked toinvalidate these appointments? .

Be this as it may, whatever may be our personal views on this matter, I agree with Mr. Justice Concepcion that

not all wrongs or even abuse of power can be corrected by the exercise of the high prerogatives of the SupremeCourt vested in it by the Constitution. As I take it, the higher and more delicate is the prerogative, the greater


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should be the degree of self-restraint in the exercise thereof, lest the fine and tested scale of checks andbalances set up by the Constitution be jarred. In the same manner that we expect circumspection and care, even

double care, on the part of the other two co-equal coordinate departments of the government, so must we bemost cautious and slow in judging the morality, propriety and good faith involved in the actuations of the other

departments in matters coming within their competence. The remedy, I believe, under the circumstances is with

the Commission on Appointments to which the appointments have been submitted. The more fact that it isexpected that the Commission on Appointments would be controlled by the party of the outgoing President is

immaterial, because legal processes can not be made to depend upon the fortunes of political parties, for there isstill the ultimate remedy by the people in all authority. At any rate, as has already been aptly said: the judiciary is

not the repository of remedies for all political or social evils, and that the judicial department has no power to

revise even arbitrary or unfair action of the other departments taken in pursuance of the power committedexclusively to those departments by the Constitution..

May I add: all the scandalous circumstances brought to the attention of this Court did not link the petitioner herein,

save for the fact that this appointment was extended on the same day as those issued under the unusual andirregular circumstances attending the other appointments. If at all, there is evidence in favor of Aytona to the

effect that insofar as he is concerned, his appointment to the position of Governor of the Central Bank has beenunder consideration for a long time and that he is qualified for the position. It can not, therefore be said that with

respect to him there was no mature deliberation and due consideration of his qualifications and of the need of the

service. he charge was made that the position of Governor of the Central Bank has been vacant for severalmonths and that the President should have filled it earlier. Yet, when the President actually filled it as he did, he is

criticized claiming that there was no immediate need for such action in view of the fact that there was an ActingGovernor. That it was really necessary to fill the position is evidenced by the act of President Macapagal himself

in making his own appointment hardly twenty-four hours after he recalled the appointment of Aytona.

Summarizing, I would say that all the circumstances cited by the respondents that have surrounded the issuanceof the appointments in question, have to do with the mode or manner of the exercise of the authority to make the

appointment, quite apart from the existence of the authority itself. The observance of good faith, morality and

propriety by the other two co-equal coordinate departments in the performance of their functions must be securedby their sense of duty and official oath hand not by any supervisory power of the courts..

The role of courts in our scheme of government is to interpret the law and render justice under it. This simply

means that whatever may be our own personal feelings as to the propriety, morality, or wisdom of any official actor actuation of a public officer or any agency of the government within their respective competence brought to the

attention of the Court for adjudication, they should not be permitted to prevail over clear legal considerations, forours is a regime under the Rule of Law..

In view of the foregoing, I am constrained to register my dissent.

Footnotes

BENGZON, C.J.:

1These positions had been vacant for months.

2The 4th Congress expired at midnight December 29, 1961..

389 A.L.R., 135 Anno.

PADILLA, J., concurring:

1Section 3, Article VI.



4Section 4, Article VII.

BARRERA, J., dissenting:

1The power of the U.S. President to make appointments is by and with the advice and consent of theSenate..

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Aytona v Castillo