Sarmiento v. Mison

VOL.
156, DECEMBER 17, 1987
549
Sarmiento III vs. Mison

*
No. L79974. 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.
Statutory Construction Constitution Intent of the framers of
the constitution and of the people adopting it must be given effect.
The fundamental principle of constitutional construction is to
give ef fect 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.
Same Same Same 1935 Constitution requires confirmation
by the Commission on Appointments of all presidential
appointments, under the 1973 constitution the president has
absolute power of appointment while under the 1987 Constitution,
only the first group of appointments requires confirmation of the
Commission on Appointments.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
_______________
*
EN BANC.
550
550
SUPREME COURT REPORTS ANNOTATED

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.
Same Same Same Same Under the 1987 Constitution, the
clear and expressed intent of its framers is to exclude presidential
appointments from confirmation on the Commission on
Appointments except appointments to offices mentioned in the first
sentence of Sec. 16 Article VII.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 lowerranked 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.
Same Same Same Same Same The word "alone" in the
third sentence of Sec. 16 Art. VII of the 1987 Constitution is a
redundancy in the light of the second sentence of Sec. 16 Article
VII.Therefore, the third sentence of Sec. 16, Article VII could
have stated merely that, in the case of lowerranked 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.
Commission on Appointments Confirmation of the
appointment of Commissioners of the Bureau of Customs by the
Commission on Appointments not required.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
551
VOL. 156, DECEMBER 17, 1987
551
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.
Same Same Appointment of respondent Savlador Mison as
Commissioner of the Bureau of Customs without submitting his
nomination to the Commission on Appointments is within the
constitutional authority of the President of the Philippines.
Consequently, we rule that the President of the Philippines
acted within her constitutional authority and power in appointing
respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission
on Appointments for confirmation. He is thus entitled to exercise
the full authority and functions of the of fice and to receive all the
salaries and emoluments pertaining thereto.
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 conf irmation 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
552
552

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
1
stated in Gold Creek Mining Corp. vs. Rodriguez, 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
_______________
1
66 Phil. 259, at 264.
553
553
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
2
appointments are vested in him in this Constitution
Second, all other officers of the Government
whose
3
appointments are not otherwise provided for by law
Third, those whom the President may be authorized by law to

appoint
_______________
2
The "other officers" whose appointments are vested in the President
in the 1987 Constitution are:

1. Regular members of the Judicial and Bar Council (ART. VIII, Sec.
8(2)
2. Chairman and Commissioners of the Civil Service Commission
(ART. IXB, Sec. 1(2)
3. Chairman and Commissioners of the Commission on Elections
(ART. IXC, Sec. 1(2)
4. Chairman and Commissioners of the Commission on Audit (ART.
IXD, Sec. 1(2): and,
5. Members of the regional consultative commission (ART. X, Sec. 18)
3
When Congress creates inferior offices and omits to provide for
appointments to them, or provides in an unconstitutional way for such

appointment, the officers are within the meaning of the clause "officers of
the Government whose appointments are not otherwise provided for by
law" and the power to appoint such officers devolves on the President.
(USC, Const., Par. II, p. 529, citing Op., Atty. Gen. 213.)
554
554

4
Fourth, officers lower in rank 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 by5 the Commission on
Appointments, the President appoints.
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
_______________
4
The 1935 Constitution says "inferior officers" while the 1987 Constitution
states "officers lower in rank."

5
Example: Sen. Raul S. Manglapus was first nominated by the President for
the position of Secretary of the Department of Foreign Affairs (an executive

department). After his nomination was confirmed by the Commission on
Appointments, the President appointed him Secretary of Foreign Affairs.
555
555
laws upon the subjects to which its provisions relate, and upon
which they express their judgment and opinion in its adoption."
6
(Barry vs. Truax, 13 N.D., 131 99 N.W., 769:65 L. R. A., 762.) "
It will be recalled that, under Sec. 10, Article VII of the

1935 Constitution, it is provided that
x x x x x
"(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 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.
x x x x x
"(7) x x x, and with the consent of the Commission on
Appointments, shall appoint ambassadors, other
public ministers and consuls x x x."
Upon the other hand, the 1973 Constitution provides that
"Section 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
Commis
_______________
6
66 Phil. 259, at 265.

556
556

sion 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
"horsetrading" 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
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
7
departments" [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,
_______________
7
Pp. 384385, Vol. II, RECORD OF THE CONSTITUTIONAL
COMMISSION OF 1986.
557
557
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, Thus
"Mr. Rama: x x x May I ask that Commissioner Monsod be
recogized.
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.
x x xx x xx x x
On Section 16, / 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.
8
x x x x x x x x" (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
9
sentence of the section from the same requirement. The
records of the deliberations of the Contitutional
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 coauthored by
Commissioner de Castro is
_______________
8
Pp. 433435, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL
COMMISSION.
9
The second sentence of Sec. 16, ART. VII of the 1987 Constitution
refers to what this Decision calls the second and third groups of officers
appointed by the President.
558
558

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
supervision of the staff bureau directors.
x x x x x x x x x
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?
x x x x x x x x x
MR. REGALADO: Madam President, the Committee feels that
this matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
559
559

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.
x x x x x x x x x
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
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
x x x x x x x x x
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
560
560

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.
x x x x x x x x x
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
10
amended, is approved" (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
reading
". . . He (the President) shall also appoint all other officers of the
by law and those whom he may be authorized by law to appoint . .
.
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10
Pp. 514521, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL
COMMISSION.
561

x x x" (Emphasis supplied)
561
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 off icers
mentioned in the second sentence.
Rather 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
562
562

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 lowerranked 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
563

563
ranked officers, it follows that higherranked 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 lowerranked 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 10, Article
VII thereof
"x x x 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, thus
"3. The President shall nominate and with the consent
bureaus, officers of the Army from the rank of
captain or commander, and all other officers of the
provided for, and those whom he may be authorized
by law to appoint x x x"
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 in
564
564

ferior officers (equivalent to "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 lowerranked 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 lowerranked
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 Con
565
565
Sarmiento III vs, Mison
stitution, 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 Deputy
Commissioner of Customs shall be appointed by the President of
the Philippines " (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34)
were approved during the effectivity of the 1935
Constitution, under which the President may nominate
and, with the consent of the Commission on Appointments,
appoint the heads of bureaus, like the Commissioner of the
Bureau of Customs.
After the effectivity of the 1987 Constitution, however,
Rep. Act No. 1937 and PD No. 34 have to be read in
harmony with Sec. 16, Art. VII, with the result that, while
the appointment of the Commissioner of the Bureau of
Customs is one that devolves on the President, as an
appointment he is authorized
566
566

by law to make, such appointment, however, no longer

needs the confirmation of the Commission on
Appointments. Consequently, we rule that the President of
the Philippines acted within her constitutional authority
and power in appointing respondent Salvador Mison,
Commissioner of the Bureau of Customs, without
submitting his nomination to the Commission on
Appointments for confirmation. He is thus entitled to
exercise the full authority and functions of the office and to
receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention
should be, as they are, hereby DISMISSED. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco,
Bidin and Corts, JJ., concur.
Teehankee (C.J.), see brief statement.
MelencioHerrera, J., concurring in a separate
opinion.
Gutierrez, Jr., J., please see separate opinion.
Cruz, J., see dissent.
Sarmiento, J., concurring in a separate opinion.
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in
consonance with its constitutional duty, to adjudicate
promptly the issue at bar and to rule that the direct
appointment
of
respondent
Salvador
Mison
as
Commissioner of the Bureau of Customs (without need of
submitting a prior nomination to the Commission on
Appointments and securing its confirmation) is valid and in
accordance with the President's constitutional authority to
so appoint officers of the Government as defined in Article
VII, section 16 of the 1987 Constitution. The paramount
public interest and the exigencies of the public service
demand that any doubts over the validity of such
appointments be resolved expeditiously in the test case at
bar.
It should be noted that the Court's decision at bar does
not mention nor deal with the Manifestation of December
1, 1987
567
567
filed by the intervenor that Senate Bill No. 137 entitled

"An Act Providing For the Confirmation By the
Commission on Appointments of All Nominations and
Appointments Made by the President of the Philippines"
was passed on 23 October 1987 and was "set for perusal by
the House of Representatives." This omission has been
deliberate. The Court has resolved the case at bar on the
basis of the issues joined by the parties. The contingency of
approval of the bill mentioned by intervenor clearly has no
bearing on and cannot affect retroactively the validity of
the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G.
Almario vs. Hon. Miriam DefensorSantiago." The Court
does not deal with constitutional questions in the abstract
and without the same being properly raised before it in a
justiciable case and after thorough discussion of the
various points of view that would enable it.to render
judgment after mature deliberation. As stressed at the
hearing of December 8, 1987, any discussion of the reported
bill and its validity or invalidity is premature and
irrelevant and outside the scope of the issues resolved in
the case at bar,
MELENCIOHERRERA, J., concurring:.
I concur with the majority opinion and with the concurring
opinion of Justice Sarmiento, and simply wish to add my
own reading of the Constitutional provision involved,
Section 16, Article VII, of the 1987 Constitution
provides:
'The President shall nominate and, with the consent of the
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.
568
568

"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" (Emphasis and 1st three
paragraphings, supplied).
The difference in language used is significant. Under the

first sentence it is clear that the President "nominates,' and
with the consent of the Commission on Appointments
"appoints" the officials enumerated. The second sentence,
however, significantly uses only the term "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. Deliberately eliminated
was any reference to nomination.
Thus, the intent of the framers of the Constitution to
exclude the appointees mentioned in the second sentence
from confirmation by the Commission on Appointments is,
to my mind, quite clear. So also is the fact that the term
"appoint" used in said sentence was not meant to include
the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence
could have been easily employed.
There should be no question either that the participation
of the Commission on Appointments in the appointment
process has been deliberately decreased in the 1987
Constitution compared to that in the 1935 Constitution,
which required that all presidential appointments be with
the consent of the Commission on Appointments.
The interpretation given by the majority may, indeed,
lead to some incongruous situations as stressed in the
dissenting opinion of Justice Cruz. The remedy therefor
addresses itself to the future. The task of constitutional
construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M.
Tuason & Co., Inc. vs. Land Tenure Administration, G.R.
No. 21064, February 18, 1970, 31 SCRA 413). And the
primary source from which to ascertain constitutional
intent is the language of the Constitution itself,
569
569
SARMIENTO, J., Concurring:

I concur. It is clear from the Constitution itself that not all
Presidential
appointments
are
subject
to
prior
Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the
in this Constitution. He shall also appoint all other officers of the
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 departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during recess of the Congress, whether voluntary or compulsory,
but such appointment shall be effective only until disapproval by
the Commission1 on Appointments or until the next adjournment
of the Congress.
By its plain language, the Constitution has intended that

only those grouped under the first sentence are required to
undergo a consenting process. This is a significant
departure from the procedure set forth in the 1935 Charter:
(3) The President shall nominate and with the consent
bureaus, officers of the Army from the rank of
captain to commander, and all other officers of the
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 President2 alone, in the courts, or in the heads of
departments.
under which, as noted by the majority, "almost all
presidential
_______________
CONST., art. VII, sec. 16.
CONST. (1935), art. VII, sec. 10(3).

570
570

appointments required the consent

(confirmation) of the
3
Commission on Appointments." As far as the present
Charter is concerned, no extrinsic aid is necessary to
ascertain its meaning. Had its framers intended otherwise,
that is to say, to require all Presidential appointments
clearance from the Commission on Appointments, they
could have 4 simply reenacted the Constitution's 1935
counterpart.
I agree that the present Constitution classifies four
types of appointments that the President may make: (1)
appointments of heads of executive departments,
ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval
captain, and those of other officers whose appointments are
vested in him under the Constitution, including
the regular
5
members of the Judicial and Bar Council, the Chairman
6
and Commissioners of the Civil Service Commission, the
Chairman7 and Commissioners of the Commission on
Elections, and the Chairman
and Commissioners of the
8
Commission on Audit
(2) those officers whose
appointments are not otherwise provided for by law (3)
those whom he may be authorized by law to appoint and
(4) officers lower in rank whose appointments the Congress
may vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that
authors of the fundamental
law have written a "rather
9
confused Constitution" with respect, to a large extent, to
its other parts, and with respect, to a certain extent, to the
appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's
appointment needs confirmation whereas that of
Undersecretary of Foreign
_______________
3
4
Sarmiento v. Mison, G.R. No. 79974, 6.

As Justice Padilla further notes, Section 16, of Article VII, was
originally a verbatim copy of the 1935 provisions. Upon further

deliberations of the Constitutional Commission, however, the consensus
was reached to amend the same to its present form.
CONST., art. VIII, sec. 8(2).
Supra, art. IX (B), sec. 1 (2).
Supra, art. IX (C), sec. 1 (2).
Supra, art. IX (D), sec. 1 (2).
Sarmiento v. Mison, supra, Cruz., J., Dissenting, 5.

571
571
Affairs, his superior, does not. But the idiosyncracies, as it

were, of the Charter is not for us to judge, That is a
question addressed to the electorate, and who, despite
those "eccentricities," have stamped their approval on that
Charter. "The Court," avers the majority, "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
10
with what they say and provide.''
It must be noted that the appointment of 11public officials
is essentially an exercise of executive power. The fact that
the Constitution has provided for a Commission on
Appointments does not minimize the extent of such a
power, much less, make it a shared executivelegislative
prerogative. In Concepcion v. Paredes, we stated in no
uncertain terms that "[a]ppointment to office is
intrinsically12 an executive act involving the
exercise of
13
discretion." Springer v. Philippine Islands on the other
hand, underscored the fact that while the legislature may
create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it
may prescribe the qualifications therefor, it cannot
circumscribe such qualifications, which would unduly
narrow the President's choice. In that event, it is as if it is
the legislature itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on
_______________
10
Supra, 3.
11
Concepcion v. Paredes, 42 Phil. 599 (1921) Government v. Springer,
50 Phil. 259 (1927) Springer v. P.I., 277 U.S. 189 (1929). The Supreme
Court has been vested with the power to "[a]ppoint all officials of the
Judiciary in accordance with the Civil Service Law" [CONST., art. VIII,
sec. 5(6)] but that is by fiat of the Constitution itself. (See also supra, art.
VII, sec. 16.). In Government v. Springer, supra, we recognized the
authority of the legislature to appoint its officers but only as "an incident
to the discharge of its functions." (At 278). When the Constitution

authorizes Congress to vest in the President the appointment of other
officers, it is not Congress being empowered to make the appointments
the President retains his appointing power, through, however, a procedure
established by Congress.
12
Supra, at 603.
13
Supra.
572
572

Appointments, the Chief Executive retains his supremacy

as the appointing authority. In case of doubt, the same
should be resolved in f avor of the appointing power,
It is the essence of a republican form of government, like
ours, that "[e]ach department of the government has
14
exclusive cognizance of matters within its jurisdiction."
But like all genuine republican systems, no power is
absolutely separate from the other. For republicanism
operates on a process of checks and balances as well, not
only to guard against excesses by one branch, but more
importantly, "to secure coordination in the15 workings of the
various departments of the government." Viewed in that
light, the Commission on Appointments acts as a restraint
against abuse of the appointing authority, but not as a
means with which to hold the Chief Executive hostage by a
possibly hostile Congress, an unhappy lesson as the
majority notes, in our history under the regime of the 1935
Constitution.
The system of checks and balances is not peculiar to the
provision on appointments. The prohibition, for instance,
against the enactment of a bill of attainder operates as a
bar against legislative encroachment upon both judicial
and executive domains, since the determination of guilt
and punishment of the guilty
address judicial and
16
executive functions, respectively,
And then, the cycle of checks and balances pervading the
Constitution is a sword that cuts both ways. In a very real
sense, the power of appointment constitutes a check
against 17legislative authority. In Springer v. Philippine
Islands, we are told that "Congress may not control the
law enforcement process by retaining a power
to appoint
18
the individual who will execute the laws." This is so,
according to one authority, because "the appointments
clause, rather than 'merely dealing with etiquette or
protocol,' seeks to preserve an executive check upon

legislative authority in the interest of avoiding an
_______________
14
Angara v. Electoral Commission, 63 Phil. 139,156 (1936).
15
Angara v. Electoral Commission, supra.
16
TRIBE, AMERICAN CONSTITUTIONAL LAW, 184185 (1978),
citing Buckley v. Valeo. 424 US 1 (1976)

17
Supra.
18
TRIBE, id, 184.

573
573

19
undue concentration of power in Congress. "

20
The President has sworn to "execute [the] laws. For
that matter, no other department of the Government may
discharge that function, least of all, Congress. Accordingly,
a statute conferring upon a commission the responsibility
of administering that very legislation and whose members
have been determined therein,
has been held to be
21
repugnant to the Charter." Execution of the laws, it was
held, is the concern of the President, and in going about
this business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his
22
own appointees "except for cause provided by law."
Parenthetically, this represents a deviation from the rule
prevailing in American jurisdiction that "the power of
23
removal. . . [is] incident to the power of appointment,"
although
this has since been tempered in a subsequent
24
case, where it was held that the
President may remove
25
only "purely executive officers," that is,26 officers holding
office at his pleasure. In Ingles v. Mutuc, this Court held
that the President may remove incumbents of offices
confidential in nature, but we likewise made clear that in
such a case, the incumbent is not "removed" within the
meaning of civil service laws, but that his term merely
expires.
It is to be observed, indeed, that the Commission on
Appointments, as constituted under the 1987 Constitution,
is itself subject to some check. Under the Charter, "[t]he
Commission shall act on all appointments submitted to it
within thirty session days of the Congress from their
27
submission." Accordingly, the failure of the Commission to
27
submission." Accordingly, the failure of the Commission to

either consent or
_______________
19
Id., 184185, citing Buckley v. Valeo, supra,
20
CONST., art. VII, sec. 5.
21
Buckley v. Valeo, supra,
22
CONST., art. IX (B), sec. 2 (3).
23
Myers v. United States, 272 US 52 (1926).
24
TRIBE, id., at 188, citing Humphrey's Executor v. United States, 295
US 602 (1935).
25
Id.
26
No. L20390, November 29,1968, 26 SCRA 171 (1968).
27
CONST., art. VI, sec. 18.

574
574

not consent to the appointments preferred before it within

the prescribed period results in a de facto confirmation
thereof.
Certainly, our founding fathers have fashioned a
Constitution where the boundaries of power are blurred by
the predominance of checks and counterchecks, yet amid
such a rubble of competing powers emerges a structure
whose parts are at times jealous of each other, but which
are ultimately necessary in assuring a dynamic, but stable,
society. As Mr. Justice Holmes had so elegantly articulated:
x x x x x x x x x
The great ordinances of the Constitution do not establish and
divide fields of black and white. Even the more specific of them
are found to terminate in a penumbra shading gradually from one
extreme to the other. x x x When we come to the fundamental
distinctions it is still more obvious that they must be received
with a certain latitude or our government could not go on.
x x x x x x x x x
It does not seem to need argument to show that however we
may disguise it by veiling words we do not and cannot carry out
the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I28 am far
from believing that it is, or that the Constitution requires.
x x x x x x x x x
We are furthermore told:

x x x x x x x x x
x x x [I]t will be vital not to forget that all of these "checks and
counterpoises, which Newton might readily have recognized as
suggestive of the mechanism of the heavens," [W. Wilson,
Constitutional Government in the United States 56 (1908)] can
represent only the scaffolding of a far more subtle "vehicle of life."
(Id. at 192: "The Constitution cannot be regarded as a mere legal
document, to be read as a will or a contract would be. It must, of
the necessity of the case, be a vehicle of life.") The great difficulty
of any theory less rich, Woodrow Wilson once warned, "is that
government is not a
_______________
28
Holmes, J., Dissenting, Springer v. Philippine Islands, supra, 210
212.
575
575

machine, but a living thing. It falls, not under the theory of the
universe, but under the theory of organic life. It is accountable to
Darwin, not to Newton. It is . . . shaped to its functions by the
sheer pressure of life. No living thing can have its organs offset
against each other as checks, and live." (Id. at 56.) Yet because no
complex society can have its centers of power not "offset against
each other as checks," and resist tyranny, the Model of Separated
and Divided Powers offers continuing
testimony to the undying
29
dilemmas of progress and justice.
x x x x x x x x x
As a closing observation, I wish to clear the impression that

the 1973 Constitution deliberately denied the legislature
(the National Assembly under the 1971 draft Constitution)
the power to check executive appointments, and 30hence,
granted the President absolute appointing power. As a
delegate to, and VicePresident of, the illfated 1971
Constitutional Convention, and more so as the presiding
officer of most of its plenary session, I am aware that the
Convention did not provide for a commission on
appointments on the theory that' the Prime Minister, the
head of the Government and the sole appointing power,
was himself a member of parliament. For this reason, there
was no necessity for a separate body to scrutinize his
appointees. But should such appointees forfeit the

confidence of the assembly, they are, by tradition, required
to resign, unless they should
otherwise have been removed
31
by the Prime Minister. In effect, it is parliament itself
that "approves" such appointments. Unfortunately,
supervening events forestalled our parliamentary
experiment, and beginning with the 1976 amendments and
some 140 or so amendments
thereafter, we had reverted to
32
the presidential form, without provisions for a commission
on appointments.
In fine, while Presidential appointments, under the first
sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is
a test
_______________
29
TRIBE, id., 1819 emphasis in original.
30
Sarmiento v. Mison, supra, 6.
31
CONST. (1973), art. IX, sec. 4 art. XII (B), sec. 3.
32
See Free Telephone Workers Union v. Minister of Labor and
Employment, No. L58184, October 30, 1981, 108 SCRA 757 (1981).
576
576

that operates as a mere safeguard against abuse with

respect to those appointments. It does not accord Congress
any more than the power to check, but not to deny, the
Chief Executive's appointing power or to supplant his
appointees with its own. It is but an exception to the rule.
In limiting the Commission's scope of authority, compared
to that under the 1935 Constitution, I believe that the 1987
Constitution has simply recognized the reality of that
exception.
GUTIERREZ, JR., J., dissenting opinion
I join Justice Isagani A. Cruz in his dissent. I agree that
the Constitution, as the supreme law of the land, should
never have any of its provisions interpreted in a manner
that results in absurd or irrational consequences.
The Commission on Appointments is an important
constitutional body which helps give fuller expression to
the principles inherent in our presidential system of
government. Its functions cannot be made innocuous or
unreasonably diminished to the confirmation of a limited

number of appointees. In the same manner that the
President shares in the enactment of laws which govern
the nation, the legislature, through its Commission on
Appointments, gives assurance that only those who can
pass the scrutiny of both the President and Congress will
help run the country as officers holding high appointive
positions. The third sentence of the first paragraph"x x x
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."specifies only "officers lower in rank" as those
who may, by law, be appointed by the President alone, If as
expounded in the majority opinion, only the limited
number of officers in the first sentence of Section 16
require confirmation, the clear intent of the third sentence
is lost. In fact both the second and third sentences become
meaningless or superfluous. Superfluity is not to be read
into such an important part of the Constitution.
I agree with the intervenor that all provisions of the
Constitution on appointments must be read together. In
providing
577
577
for the appointment of members of the Supreme Court and

judges of lower courts (Section 9, Article VIII), the
Ombudsman and his deputies (Section 9, Article XI), the
Vice President as a member of cabinet (Section 3, Article
VII) and, of course, those who by law the President alone
may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other
appointments need confirmation. Where there is no need
for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares.
Without such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a
Commission on Appointments because the government it
set up was supposed to be a parliamentary one. The Prime
Minister, as head of government, was constantly
accountable to the legislature. In our presidential system,
the interpretation which Justice Cruz and myself espouse,
is more democratic and more in keeping with the system of
government organized under the Constitution.
I, theref ore vote to grant the petition.
CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority
opinion, is briefly as follows: Confirmation is required only
for the officers mentioned in the first sentence of Section
16, to wit: (1) the heads of the executive departments (2)
ambassadors, other public ministers and consuls (3)
officers of the armed forces from the rank of colonel or
naval captain and (4) other officers whose appointments
are vested in the President in the Constitution. No
confirmation is required under the second sentence for (1)
all other officers whose appointments are not otherwise
provided for by law, and (2) those whom the President may
be authorized by law to appoint. Neither is confirmation
required by the third sentence for those other officers lower
in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of
Foreign Affairs, who is not the head of his department,
does not
578
578

have to be confirmed by the Commission on Appointments,

but the ordinary consul, who is under his jurisdiction, must
be confirmed. The colonel is by any standard lower in rank
than the Chairman of the Commission on Human Rights,
which was created by the Constitution yet the former is
subject to confirmation but the latter is not because he does
not come under the first sentence. The Special Prosecutor,
whose appointment is not vested by the Constitution in the
President, is not subject to confirmation under the first
sentence, and neither are the Governor of the Central Bank
and the members of the Monetary Board because they fall
under the second sentence as interpreted by the majority
opinion. Yet in the case of the multisectoral members of
the regional consultative commission, whose appointment
is vested by the Constitution in the President under Article
X, Section 18, their confirmation is required although their
rank is decidedly lower.
I do not think these discrepancies were intended by the
framers as they.would lead to the absurd consequences we
should avoid in interpreting the Constitution.
There is no question that bureau directors are not
required to be confirmed under the first sentence of Section
16, but that is not the provision we ought to interpret. It is

the second sentence we must understand for a proper
resolution of the issues now before us. Significantly,
although there was a long discussion of the first sentence
in the Constitutional Commission, there is none cited on
the second sentence either in the SolicitorGeneral's
comment or in the majority opinion. We can therefore only
speculate on the correct interpretation of this provision in
the light of the first and third sentences of Section 16 or by
reading this section in its totality.
The majority opinion says that the second sentence is
the exception to the first sentence and holds that the two
sets of officers specified therein may be appointed by the
President wihout the concurrence of the Commission on
Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably
were not envisioned by the framers.
One may wonder why it was felt necessary to include the
second sentence at all, considering the majority opinion
that the
579
VOL. 156, DECEMBER .17, 1987
579
enumeration in the first sentence of the officers subject to

confirmation is exclusive on the basis of expressio unius est
exclusio alterius. If that be so, the first sentence would have
been sufficient by itself to convey the idea that all other
appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the
second sentence do not need confirmation, it was still felt
necessary to provide in the third sentence that the
appointment of the other officers lower in rank will also not
need confirmation as long as their appointment is vested by
law in the President esident alone. The third sentence
would appear to be superfluous, too, again in view of the
first sentence.
More to the point, what will follow if Congress does not
see fit to vest in the President alone the appointment of
those other officers lower in rank mentioned in the third
sentence? Conformably to the language thereof, these lower
officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers
mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor
and the labor arbiters, as officers lower in rank than the
bureau director, will have to be confirmed if the Congress

does not vest their appointment in the President alone
under the third sentence. On the other hand, their
superior, the bureau director himself, will not need to be
confirmed because, according to the majority opinion, he
falls not under the first sentence but the second. This is
carefulness in reverse, like checking the bridesmaids but
forgetting the bride.
It must be borne in mind that one of the purposes of the
Constitutional Commission was to restrict the powers of
the Presidency and so prevent the recurrence of another
dictatorship. Among the many measures taken was the
restoration of the Commission on Appointments to check
the appointing power which had been much abused by
President Marcos. We are now told that even as this body
was revived to limit appointments, the scope of its original
authority has itself been limited in the new Constitution. I
have to disagree.
My own reading is that the second sentence is but a
continuation of the idea expressed in the first sentence and
simply
580
580

mentions the other officers appointed by the President who

are also subject to confirmation. The second sentence is the
later expression of the will of the framers and so must be
interpreted as complementing the rule embodied in the
first sentence or, if necessary, reversing the original
intention to exempt bureau directors from confirmation. I
repeat that there were no debates on this matter as far as I
know, which simply means that my humble conjecture on
the meaning of Section 16 is as arguable, at least, as the
suppositions of the majority. We read and rely on the same
records. At any rate, this view is more consistent with the
general purpose of Article VII, which, to repeat, was to
reduce the powers of the Presidency,
The respondent cites the following exchange reported in
page 520, Volume II, of the Record of the Constitutional
Convention:
Mr. Foz: Madam President, this is the third proposed amendment
on page 7, line 28, I 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
However, the records do not show what particular part of

Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest
that the body was considering the first sentence of the said
section, which I reiterate is not the controversial provision.
In any case, although the excerpt shows that the proposed
amendment of Commissioner Foz was accepted by the
committee, it is not reflected, curiously enough, in the final
version of Section 16 as a perusal thereof will readily reveal
Whether it was deleted later in the session or reworded by
the style committee or otherwise replaced for whatever
reason will need another surmise on this rather confused
Constitution.
I need only add that the records of the Constitutional
Commission are merely extrinsic aids and are at best
persuasive only and not necessarily conclusive.
Interestingly, some quarters have observed that the
Congress is not prevented from adding
581
581
to the list of officers subject to confirmation by the

Commission on Appointments and cite the debates on this
matter in support of this supposition. It is true enough that
there was such a consensus, but it is equally true that this
thinking is not at all expressed, or even only implied, in the
language of Section 16 of Article VII. Which should prevail
thenthe provision as worded or the debates?
It is not disputed that the power of appointment is
executive in nature, but there is no question either that it
is not absolute or unlimited. The rule reestablished by the
new Constitution is that the power requires confirmation
by the Commission on Appointments as a restraint on
presidential excesses, in line with the system of checks and
balances. I submit it is the exception to this rule, and not
the rule, that should be strictly construed.
In my view, the only officers appointed by the President
who are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the
Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council (2) the VicePresident when he is

appointed to the Cabinet and (3) "other officers lower in
rank," but only when their appointment is vested by law in
the President alone. It is clear that this enumeration does
not include the respondent Commissioner of Customs who,
while not covered by the first sentence of Section 16, comes
under the second sentence thereof as I would interpret it
and so is also subject to confirmation.
I vote to grant the petition.
Petition dismissed.
Notes.Appointment is an essential discretionary
power and must be performed by the officer in which it is
vested according to his best lights, the only condition being
that the appointee should possess the qualifications
required by law. (Luego vs. Civil Service Commission, 143
SCRA 327.)
Civil Service Commission is not empowered to
determine the kind of nature of appointment. (Luego vs.
Civil Service Commission, 143 SCRA 327.)
o0o
582
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VOL.

156, DECEMBER 17, 1987

Sarmiento III vs. Mison

No. L79974. December 17, 1987.

ULPIANO P. SARMIENTO III AND JUANITO G.

Constitution, it is not difficult for the Court to state that the

SUPREME COURT REPORTS ANNOTATED

leaving to the President, without such confirmation, the

government. In short, the word "alone" in the third sentence of

VOL. 156, DECEMBER 17, 1987

Sarmiento III vs. Mison

Appointments is required. As a matter of fact, as already pointed

the Integrated Bar of the Philippines and professors of

SUPREME COURT REPORTS ANNOTATED

remedy to test respondent Mison's right to the Office of

is that which is embodied and expressed in the constitutional

The Court will thus construe the applicable constitutional

66 Phil. 259, at 264.

VOL. 156, DECEMBER 17, 1987

Sarmiento III vs. Mison

whom he may be authorized by law to appoint. The Congress may,

It is readily apparent that under the provisions of the 1987

Third, those whom the President may be authorized by law to

The "other officers" whose appointments are vested in the President

in the 1987 Constitution are:

When Congress creates inferior offices and omits to provide for

appointments to them, or provides in an unconstitutional way for such

SUPREME COURT REPORTS ANNOTATED

Fourth, officers lower in rank whose appointments the Congress

The first group of officers is clearly appointed with the

rule of constitutional construction. We can refer to

states "officers lower in rank."

the position of Secretary of the Department of Foreign Affairs (an executive

VOL. 156, DECEMBER 17, 1987

Sarmiento III vs. Mison

It will be recalled that, under Sec. 10, Article VII of the

by law vest the appointment of inferior officers, in

Thus, in the 1935 Constitution, almost all presidential

66 Phil. 259, at 265.

SUPREME COURT REPORTS ANNOTATED

sion on Appointments. It is now a sad part of our political

On the other hand, the 1973 Constitution, consistent

The above text is almost a verbatim copy of its counterpart

Pp. 384385, Vol. II, RECORD OF THE CONSTITUTIONAL

VOL. 156, DECEMBER 17, 1987

Sarmiento III vs. Mison

Article VII, a feeling was manifestly expressed to make the

presidential appointments more limited than that held by

In the course of the debates on the text of Section 16, there

Pp. 433435, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL

SUPREME COURT REPORTS ANNOTATED

VOL. 156, DECEMBER 17, 1987

Sarmiento III vs. Mison

26, such that appointments of bureau directors no longer need

SUPREME COURT REPORTS ANNOTATED

the words I proposed.

MR. DAVIDE: After 'captain,' add the following: AND OTHER

It is, therefore, clear that appointments to the second and

Pp. 514521, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL