ROSALINDA DE PERIO SANTOS v EXEC. SEC. CATALINO MACARAIG FACTS: 1.

Petitioner Rosalinda de Perio-Santos, a career service officer with the rank of Chief of Mission II and Ambassador Extraordinary and Plenipotentiary, was appointed on July 24, 1986, by Pres. Aguino, to the position of Permanent Representative of the Philippines to the Philippine Mission to the United Nations and other International Organizations with station in Geneva, Switzerland. 2. On April 6, 1987, petitioner sought a leave of absence from the Department of Foreign Affairs (DFA) to spend the Easter Holidays in New York, U.S.A., with her mother, brothers and sisters at no expense to the Government. She bought two (2) non-transferable, non-refundable discounted tickets costing SFr. 1,597 for herself and her adopted daughter Pia. 3. Before they could leave Geneva, petitioner received instructions from the home office directing her to proceed to Havana as a member of the Philippine delegation to the UNCTAD G-77 Preparatory Conference from April 20-26, 1987 (Ibid.). For the official trip outside her station, she was entitled, under the "Foreign Service Personnel Manual on Travel, Per Diems, and Daily Allowance Abroad," to SFr. 2,996 for the cost of economy roundtrip fare from Geneva-New York-Geneva portion of her Geneva-New York-Havana-New York-Geneva trip. Instead of buying an economy roundtrip ticket, she used for the Geneva-New York-Geneva portion of her trip the two (2) discounted tickets costing only SFr. 1,597 for herself and her daughter Pia. They left Geneva for New York en route to Havana on April 15, 1987. On the same day, the DFA approved her application for a leave of absence with pay from April 27 to May 1, 1987 (Ibid.). After the Havana Conference, she and her daughter spent her vacation leave in New York before returning to Geneva (Ibid.). 3. Instead of claiming reimbursement for SFr. 2,996, she requested, and received, reimbursement of only SFr. 1,597 which she spent for the Geneva to New York, and New York to Geneva portion of her trip, thereby effecting savings of SFr.1,399 for the Government. 4. On September 16, 1987, the DFA sent her a cable (GE-202/87) requesting clarification on "why Mission paid for plane ticket of infant Pia de Perio-Santos (petitioner's daughter) Geneva-New York-Geneva per CV 216/87 when she was not authorized to accompany her adopting mother at government expense. On September 21, 1987, the DFA required her to refund the amount representing her daughter's round-trip ticket. Instead of refunding only the sum of Sfr. 673 to the Government, petitioner returned the full amount of SFr.1,597. She thereafter claimed payment for one round-trip economy plane ticket (Geneva-New York-Geneva) in the amount of SFr. 2,996 to which she was entitled under the Foreign Service Personnel Manual on Travel, Per Diems and Daily Allowance Abroad. 5. On October 5, 1987, Deputy Armando Maglaque, and some MISUNPHIL employees filed administrative charges against her for "incompetence; inefficient; corrupt and dishonest activities; rude and uncouth manners; abusive and high-handed behavior; irregular and highly illegal transactions involving funds of the mission." Ambassador Eduardo Rosal also charged her with estafa before the Tanodbayan. The case was dismissed for insufficiency of evidence. 6. In a letter-decision dated April 27, 1988 (p. 50, Rollo), the Secretary of Foreign Affairs affirmed the BFSA's (Board of Foreign Service Administration) recommendation declaring Ambassador de Perio-Santos guilty of the lesser offense of misconduct, instead of

dishonesty, meted to her the penalty of reprimand, and recalled her to the home office. 7. On January 24, 1989, President Aquino nominated Narcisa L. Escaler as Ambassador and Permanent Representative to the United Nations and other International Organizations in Geneva in lieu of the petitioner. The nomination was confirmed by the Commission on Appointments on March 15, 1989. ISSUE: WON petitioners designation was one based on special trust and confidence which the appointing power, the President, may revoke at the loss of such. HELD: YES. The petitioner's designation as the permanent representative of the Philippine Government to the United Nations and other International Organizations in Geneva was one based on the special trust and confidence which the appointing power, the President, had in the appointee. Once that trust and confidence ceased to exist, the incumbent's continuance in the position became untenable. The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures (Corpus vs. Cuaderno, 13 SCRA 591). When that confidence is lost and the officer holding the position is separated from the service, such cessation is not removal from office but merely an expiration of his/her term (Cadiente vs. Santos, 142 SCRA 280). An incumbent of a primarily confidential position holds office at the pleasure of the appointing power. When the pleasure turns into displeasure, the incumbent is not removed or dismissed from office his term merely expires (Ingles vs. Mutuc, 26 SCRA 171). "Primarily confidential" denotes "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state" (Pinero vs. Hechanova, 18 SCRA 417; citing De los Santos vs. Mallare, 87 Phil. 289). It is the fact of loss of confidence, not the reason for it, that is important and controlling. As holder of a primarily confidential position, petitioner's foreign assignment was at the pleasure of the President. The recall order terminating her tour of duty in Geneva and returning her to the home office was merely a change of post or transfer of location of work. Petitioner may not justifiably assail the appointment of Narcisa Escaler as her replacement in Geneva because the power to appoint is essentially discretionary. The appointing power, the President, has the right of choice which she may exercise freely, according to her best lights (Pamantasan ng Lungsod ng Maynila vs. Court of Appeals, 140 SCRA 22). This Court may not order the reinstatement of the petitioner to her former position in Geneva for that would be tantamount to a usurpation by this Court of the power of appointment, which is the exclusive prerogative of the Chief Executive (Article VII, Section 16, 1987 Constitution). It would violate the system of separation of powers which inheres in our democratic republican form of government. The recall order issued by the Secretary of Foreign Affairs (Assignment Order No. 58/88) was a valid exercise of his authority as an alter ego of the President. His acts, "performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the latter. His order recalling the petitioner to the home office, having been affirmed by the President, any doubts as to its validity and propriety have thereby been laid to rest.