Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 131429 August 4, 1999

OSCAR BERMUDEZ, ARTURO A. LLOBRERA and CLAUDIO L. DAYAON, petitioners,

vs.
EXECUTIVE SECRETARY RUBEN TORRES, BUDGET SECRETARY SALVADOR ENRIQUEZ, JR., JUSTICE SECRETARY
TEOFISTO GUINGONA, JR., and ATTY. CONRADO QUIAOIT, respondents.

VITUG, J.: performed the functions and duties of the Office of

Provincial Prosecutor by issuing office orders and
The validity and legality of the appointment of memoranda, signing resolutions on preliminary
respondent Conrado Quiaoit to the post of investigations, and filing several informations
Provincial Prosecutor of Tarlac by then President before the courts. Quiaoit had since been regularly
Fidel V. Ramos is assailed in this petition for review receiving the salary, RATA and other emoluments of
on certiorari on a pure question of law which prays the office.
for the reversal of the Order,1 dated 20 October
1997, of the Regional Trial Court (Branch 63) of On 17 September 1997, Bermudez and Quiaoit
Tarlac, Tarlac, dismissing the petition for were summoned to Manila by Justice Secretary
prohibition and/or injunction and mandamus, with Guingona. The three met at the Department of
a prayer for the issuance of a writ of Justice and, following the conference, Bermudez
injunction/temporary restraining order, instituted was ordered to wind up his cases until 15 October
by herein petitioners. 1997 and to turn-over the contested office to
Quiaoit the next day.1âwphi1.nêt
The occurrence of a vacancy in the Office of the
Provincial Prosecutor of Tarlac impelled the main In his First Indorsement, dated 22 September 1997,
contestants in this case, petitioner Oscar Bermudez for the Chief State Prosecutor, Assistant Chief State
and respondent Conrado Quiaoit, to take Prosecutor Nilo Mariano transmitted the original
contrasting views on the proper interpretation of a copy of Quiaoit's appointment to the Regional State
provision in the 1987 Revised Administrative Code. Prosecutor Carlos de Leon, Region III, at San
Bermudez, the First Assistant Provincial Prosecutor Fernando, Pampanga. In turn, in his Second
of Tarlac and Officer-In-Charge of the Office of the Indorsement, dated 02 October 1997, Regional
Provincial Prosecutor, was a recommendee2 of State Prosecutor de Leon forwarded to Quiaoit said
then Justice Secretary Teofisto Guingona, Jr., for original copy of his appointment. On the basis of
the position of Provincial Prosecutor. Quiaoit, on the transmittal letter of Regional State Prosecutor
the other hand, would appear to have had the de Leon, Quiaoit, as directed, again so assumed
support of then Representative Jose Yap of the office on 16 October 1997. On even date, Bermudez
Second Legislative District of Tarlac.3 On 30 June was detailed at the Office of the Regional State
1997, Quiaoit emerged the victor when he was Prosecutor, Region III, in San Fernando Pampanga.
appointed by President Ramos to the coveted
office. Quiaoit received a certified xerox copy of his In the meantime, on 10 October 1997, Bermudez
appointment and, on 21 July 1997, took his oath of together with his co-petitioners Arturo Llobrera
office before Executive Judge Angel Parazo of the and Claudio Dayaon, the Second Assistant
Regional Trial Court (Branch 65) of Tarlac, Tarlac. Provincial Prosecutor and the Fourth Assistant
On 23 July 1997, Quiaoit assumed office and Provincial Prosecutor of Tarlac, respectively, filed
immediately informed the President, as well as the with the Regional Trial Court of Tarlac, a petition for
Secretary of Justice and the Civil Service prohibition and/or injunction, and mandamus, with
Commission, of that assumption. Bermudez refused a prayer for the issuance of a writ of
to vacate the Office of Provincial Prosecutor injunction/temporary restraining order, against
claiming that the original copy of Quiaoit's herein respondents, challenging the appointment
appointment had not yet been released by the of Quiaoit primarily on the ground that the
Secretary of Justice.4 Quiaoit, nonetheless, appointment lacks the recommendation of the
Secretary of Justice prescribed under the Revised that, they claim, can be likened to the aforequoted
Administrative Code of 1987. After hearing, the trial provision of the Revised Administrative Code of
court considered the petition submitted for 1987. Respondents argue differently.
resolution and, in due time, issued its now assailed
order dismissing the petition. The subsequent The legislative intent is, of course, primordial. There
move by petitioners to have the order reconsidered is no hard-and-fast rule in ascertaining whether the
met with a denial. language in a statute should be considered
mandatory or directory, and the application of a
Hence, the instant recourse. ruling in one particular instance may not necessarily
be apt in another8 for each must be determined on
The core issue for consideration is whether or not the basis of the specific law in issue and the peculiar
the absence of a recommendation of the Secretary circumstances attendant to it. More often than not,
of Justice to the President can be held fatal to the the problem, in the final analysis, is firmed up and
appointment of respondent Conrado Quiaoit. This addressed on a case-to-case basis. The nature,
question would, in turn, pivot on the proper structure and aim of the law itself is often resorted
understanding of the provision of the Revised to in looking at the legislative intent. Generally, it is
Administrative Code of 1987 (Book IV, Title III, said that if no consequential rights or liabilities
Chapter II, Section 9) to the effect that — depend on it and no injury can result from ignoring
it, and that the purpose of the legislature can be
All provincial and city prosecutors and accomplished in a manner other than that
their assistants shall be appointed by the prescribed when substantially the same results can
President upon the recommendation of be obtained, then the statute should be regarded
the Secretary. merely as directory, rather than as mandatory, in
character.9
Petitioners contend that an appointment of a
provincial prosecutor mandatorily requires a prior An "appointment" to a public office is the
recommendation of the Secretary of Justice unequivocal act of designating or selecting by one
endorsing the intended appointment citing, by having the authority therefor of an individual to
analogy, the case of San Juan vs. CSC 5 where the discharge and perform the duties and functions of
Court held: an office or trust.10 The appointment is deemed
complete once the last act required of the
appointing authority has been complied with and
. . . The DBM may appoint only from the
its acceptance thereafter by the appointee in order
list of qualified recommendees nominated
to render it effective.11 Appointment necessarily
by the Governor. If none is qualified, he
calls for an exercise of discretion on the part of the
must return the list of nominees to the
appointing authority.12 In Pamantasan ng Lungsod
Governor explaining why no one meets
ng Maynila vs. Intermediate Appellate
the legal requirements and ask for new
Court,13 reiterated in Flores vs. Drilon,14 this Court
recommendees who have the necessary
has held:
eligibilities and qualifications.

The power to appoint is, in essence,

The Provincial Budget Officer (PBO) is
discretionary. The appointing power has
expected to synchronize his work with
the right of choice which he may exercise
DBM.6 (Emphasis supplied.)
freely according to his judgment, deciding
for himself who is best qualified among
Insisting on the application of San Juan, petitioners those who have the necessary
call attention to the tenor of Executive Order No.
qualifications and eligibilities. It is a
1127 —
prerogative of the appointing power . . .15

Sec. 1. All budget officers of provinces,

Indeed, it may rightly be said that the right of choice
cities and municipalities shall be
is the heart of the power to appoint. 16 In the
appointed henceforth by the Minister of
exercise of the power of appointment, discretion is
Budget and Management upon an integral part thereof.
recommendation of the local chief
executive concerned. . . . —
When the Constitution17 or the law18 clothes the
President with the power to appoint a subordinate
officer, such conferment must be understood as Management and the Governor of the
necessarily carrying with it an ample discretion of premier province of Rizal over a seemingly
whom to appoint. It should be here pertinent to innocuous position involves the
state that the President is the head of government application of a most important
whose authority includes the power of control over constitutional policy and principle, that of
all "executive departments, bureaus and offices." local autonomy. We have to obey the clear
Control means the authority of an empowered mandate on local autonomy. Where a law
officer to alter or modify, or even nullify or set is capable of two interpretations, one in
aside, what a subordinate officer has done in the favor of centralized power in Malacañang
performance of his duties, as well as to substitute and the other beneficial to local
the judgment of the latter,19 as and when the autonomy, the scales must be weighed in
former deems it to be appropriate. Expressed in favor of autonomy.
another way, the President has the power to
assume directly the functions of an executive xxx xxx xxx
department, bureau and office.20 It can accordingly
be inferred therefrom that the President can When the Civil Service Commission
interfere in the exercise of discretion of officials interpreted the recommending power of
under him or altogether ignore their the Provincial Governor as purely
recommendations.21 directory, it went against the letter and
spirit of the constitutional provisions on
It is the considered view of the Court, given the local autonomy. If the DBM Secretary
above disquisition, that the phrase "upon jealously hoards the entirety of budgetary
recommendation of the Secretary," found in powers and ignores the right of local
Section 9, Chapter II, Title III, Book IV, of the Revised governments to develop self-reliance and
Administrative Code, should be interpreted, as it is resoluteness in the handling of their own
normally so understood, to be a mere advise, funds, the goal of meaningful local
exhortation or autonomy is frustrated and set back.25

indorsement, which is essentially persuasive in The Court there has explained that the President
character and not binding or obligatory upon the merely exercises general supervision over local
party to whom it is made.22 The recommendation is government units and local officials,26 hence, in the
here nothing really more than advisory in appointment of a Provincial Budget Officer, the
nature.23 The President, being the head of the executive department, through the Secretary of
Executive Department, could very well disregard or Budget and Management, indeed had to share the
do away with the action of the departments, questioned power with the local government.
bureaus or offices even in the exercise of
discretionary authority, and in so opting, he cannot In the instant case, the recommendation of the
be said as having acted beyond the scope of his Secretary of Justice and the appointment of the
authority. President are acts of the Executive Department
itself, and there is no sharing of power to speak of,
The doctrine in San Juan, relied upon by petitioners, the latter being deemed for all intents and purposes
is tangential. While the tenor of the legal provision as being merely an extension of the personality of
in Executive Order No. 112 has some similarity with the President.
the provision in the 1987 Administrative Code in
question, it is to be pointed out, however, that San WHEREFORE, the petition is DENIED. No
Juan,24 in construing the law, has distinctively given costs.1âwphi1.nêt
stress to the constitutional mandate on local
autonomy; thus:
SO ORDERED.

The issue before the Court is not limited to

Melo, Panganiban, Purisima and Gonzaga-Reyes,
the validity of the appointment of one
JJ., concur
Provincial Budget Officer. The tug of war
between the Secretary of Budget and
G.R. No. 131429 August 4, 1999

OSCAR BERMUDEZ, ARTURO A. LLOBRERA and CLAUDIO L. DAYAON, petitioners,

vs.
EXECUTIVE SECRETARY RUBEN TORRES, BUDGET SECRETARY SALVADOR ENRIQUEZ, JR., JUSTICE SECRETARY TEOFISTO
GUINGONA, JR., and ATTY. CONRADO QUIAOIT, respondents.

“Section 16. The President shall nominate and, with “SECTION 9. Provincial/City Prosecution Offices.—
the consent of the Commission on Appointments, The Provincial and City Fiscal’s Office established in
appoint the heads of the executive departments, each of the provinces and cities pursuant to law, is
ambassadors, other public ministers and consuls, or retained and renamed Provincial/City Prosecution
officers of the armed forces from the rank of colonel Office. It shall be headed by a Provincial Prosecutor
or City Prosecutor, as the case may be, assisted by
or naval captain, and other officers whose
such number of Assistant Provincial/City
appointments are vested in him in this Constitution.
Prosecutors as fixed and/or authorized by law. The
He shall also appoint all other officers of the position titles of Provincial and City Fiscal and of
Government whose appointments are not Assistant Provincial and City Fiscal are hereby
otherwise provided for by law, and those whom he abolished.
may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers All provincial/city prosecution offices shall continue
lower in rank in the President alone, in the courts, to discharge their functions under existing law.
or in the heads of departments, agencies,
All provincial and city prosecutors and their
commissions, or boards.”( THE 1987
assistants shall be appointed by the President upon
CONSTITUTION OF THE REPUBLIC OF THE the recommendation of the Secretary.( Executive
PHILIPPINES – ARTICLE VII) Order No. 292 [BOOK IV/Title III/Chapter 2-
Department Proper])”

FACTS:

In 1997, there was a vacancy in the Office of the Prosecutor by issuing office orders and
Provincial Prosecutor of Tarlac. This impelled memoranda, signing resolutions on preliminary
petitioner Oscar Bermudez, the First Assistant
Provincial Prosecutor of Tarlac and Officer-In- investigations, and filing several informations
Charge of the Office of the Provincial Prosecutor, before the courts. Quiaoit had since been regularly
and private respondent Conrado Quiaoit to have receiving the salary, RATA and other emoluments of
contrasting views on the proper interpretation of a the office.
provision in the 1987 Revised Administrative Code.
Bermudez was recommended by then Justice On 10 October 1997, Bermudez together with his
Secretary Teofisto Guingona, Jr. While Quiaoit was co-petitioners, filed with the RTC of Tarlac, a
supported by then Representative Jose Yap of the petition for prohibition and/or injunction, and
Second Legislative District of Tarlac. mandamus, with a prayer for the issuance of a writ
of injunction/temporary restraining order, assailing
On 30 June 1997, Quiaoit was appointed by the appointment of Quiaoit primarily on the ground
President Ramos to the contested office and on July that the appointment lacks the recommendation of
21 1997, took his oath of office. Bermudez refused the Secretary of Justice prescribed under the
to vacate the Office of Provincial Prosecutor. Revised Administrative Code of 1987.
Nonetheless, Quiaoit performed the functions and
duties of the Office of Provincial
ISSUE: RULING:

Is the absence of a recommendation of the No. In the instant case, the recommendation of the
Secretary of Justice to the President fatal to the Secretary of Justice and the appointment of the
appointment of respondent Conrado Quiaoit? President are acts of the Executive Department
itself, and there is no sharing of power to speak of,
the latter being deemed for all intents and purposes
as being merely an extension of the personality of
the President.

The phrase "upon recommendation of the

Secretary," should be interpreted, to be a mere
advise, exhortation or indorsement, which is
essentially persuasive in character and not binding
or obligatory upon the party to whom it is made.
The Secretary of Justice is a mere alter-ego of the
President. The President, being the head of the
Executive Department, could very well disregard or
do away with the action of the departments,
bureaus or offices even in the exercise of
discretionary authority, and in so opting, he cannot
be said as having acted beyond the scope of his
authority.