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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO
CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION
ON APPOINTMENTS, intervenor.

PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the
petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of
Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of
Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of
Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been
confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality
of respondent Mison's appointment without the confirmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public service, the Court resolved to
give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the
proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of
whether the petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and
file a petition in intervention. Comment was required of respondents on said petition. The comment was filed,
followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two (2) great
departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987
Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases
like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in
Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent of the framers of
the organic law and of the people adopting it. The intention to which force is to be given is that which is
embodied and expressed in the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the
legislative department may want them construed, but in accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other officers of the Government whose

appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of the departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of
officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time,
are:
First, the heads of the executive departments, ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3
Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments
of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments,
the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the
President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted
rule in constitutional and statutory construction that an express enumeration of subjects excludes others not
enumerated, it would follow that only those appointments to positions expressly stated in the first group require the
consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of
constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional
Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution
and the people adopting it, on whether the appointments by the President, under the second, third and fourth
groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following
advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional provision must be presumed to
have been framed and adopted in the light and understanding of prior and existing laws and with
reference to them. "Courts are bound to presume that the people adopting a constitution are familiar
with the previous and existing laws upon the subjects to which its provisions relate, and upon which
they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W.,
769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in
the President alone, in the courts, or in the heads of departments.
(4) The President shall havethe 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.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other
public ministers and consuls ...

Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed
Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of
The government whose appointments are not herein otherwise provided for, and those whom he may
be authorized by law to appoint. However, the Batasang Pambansa may by law vest in the Prime
Minister, members of the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions,
and Boards the power to appoint inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the
Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the
Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue
of "horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and
remolded by successive amendments, placed the absolute power of appointment in the President with hardly any
check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not
difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle
ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of
appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in
the second and third groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16,
Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall
appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of
the Government whose appointments are not otherwise provided for by law, and those whom he may
be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in
the President alone, in the courts, or in the heads of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames
discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly
expressed to make the power of the Commission on Appointments over presidential appointments more limited than
that held by the Commission in the 1935 Constitution. ThusMr. Rama: ... May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to
lay the basis for some of the amendments that I would like to propose to the Committee
this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to
the department heads, ambassadors, generals and so on but not to the levels of bureau heads and
colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by
the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second
sentence 9 of the section from the same requirement. The records of the deliberations of the Constitutional Commission
show the following:

MR. ROMULO: I ask that Commissioner Foz be recognized

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26
which is to delete the words "and bureaus," and on line 28 of the same page, to change
the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last
amendment which is co-authored by Commissioner de Castro is to put a period (.) after
the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE
SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first proposed
amendment is to delete the words "and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what would be the
justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in the executive department,
and to require further confirmation of presidential appointment of heads of bureaus would
subject them to political influence.
MR. REGALADO: The Commissioner's proposed amendment by deletion also includes
regional directors as distinguished from merely staff directors, because the regional
directors have quite a plenitude of powers within the regions as distinguished from staff
directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau
directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner
proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint the
bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their appointment shall no
longer be subject to confirmation by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de
Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that this matter should be
submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We will first vote on the
deletion of the phrase 'and bureaus on line 26, such that appointments of bureau directors
no longer need confirmation by the Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the consent of a
Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . .
.
THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7,
line 26? (Silence) The Chair hears none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1
propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that
after "captain" we insert the following words: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in the Constitution whose
appointments are vested in the President, as a matter of fact like those of the different
constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive
list of those appointments which constitutionally require confirmation of the Commission
on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS
REQUIRE CONFIRMATION UNDER THIS CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes those officers which the
Constitution does not require confirmation by the Commission on Appointments, like the
members of the judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the modification made by
Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and
Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners
Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the
amendment, as amended, is approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can be made by the
President without the consent (confirmation) of the Commission on Appointments.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16,
Article VII readingHe (the President) shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law and those whom he may be authorized by law to appoint . . . . (Emphasis
supplied)
with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers
mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said
second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination
and with the consent (confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion
he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too"
(Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word
"also" in said second sentence means that the President, in addition to nominating and, with the consent of the
Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such
consent (confirmation) the officers mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said
second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of
nomination by the President and appointment by the President with the consent of the Commission on
Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of
different language in two (2) sentences proximate to each other underscores a difference in message conveyed and
perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien
juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and
expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose
appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in
rank, compared to some officers whose appointments have to be confirmed by the Commission on Appointments
under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank
Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel
in the Armed Forces of the Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of
the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the
Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other
officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion
is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of
what they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications
of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in
order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that
appointments by the President to the positions therein enumerated require the consent of the Commission on
Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this
implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to
confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that
higher-ranked officers should be appointed by the President, subject also to confirmation by the Commission on
Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely
declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in the
courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No reason
however is submitted for the use of the word "alone" in said third sentence.

The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the
deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word "President" in
said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be
recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII
thereof
...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which makes practically all
presidential appointments subject to confirmation by the Commission on Appointments, thus3. The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein provided for, and those whom he may be authorized
by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by
the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to
provide that Congress may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower
in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to
exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to
offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in
the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may
by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of
departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is
already vested in the President, without need of confirmation by the Commission on Appointments, in the second
sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked
officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various
departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987
Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to
be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the
clear and positive intent of the framers of the 1987 Constitution that presidential appointments, except those
mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on
Appointments.
Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the
Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of
the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935
Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the
Commission on Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of "heads
of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The
original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the
Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant
chief, to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and
Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance
with the rates prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed
by the proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the
Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and
one assistant chief, to be known respectively as the Commissioner (hereinafter known as
Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual
compensation in accordance with the rates prescribed by existing law. The Commissioner and the