THIRD DIVISION

[G.R. No. 153881. March 24, 2003]

ELPIDIO G. SORIANO III, petitioner, vs. REUBEN S. LISTA, DOMINGO

T. ESTERA, ELPIDIO B. PADAMA, MIGUEL C. TABARES, ARTHUR
N. GOSINGAN, EFREN L. TADURAN, CESAR A. SARILE, DANILO
M. VILDA and HONORABLE EMILIA T. BONCODIN, in her capacity
as Secretary of Budget and Management, respondents.

DECISION
CORONA, J.:

Before us is a Petition for Prohibition under Rule 65 of the Rules of Court questioning
the constitutionality and legality of the permanent appointments, made by President
Gloria Macapagal-Arroyo, of public respondents to different positions in the Philippine
Coast Guard and their subsequent assumption of office without confirmation by the
Commission on Appointments under the 1987 Constitution.
The petition impleads Hon. Emilia T. Boncodin in her capacity as Secretary of the
Department of Budget and Management (DBM). Petitioner, Elpidio G. Soriano, filed the
instant petition as member of the Integrated Bar of the Philippines and as a taxpayer.
Public respondents were promoted to different ranks in the Philippine Coast Guard
(PCG) on different dates as follows:
Reuben S. Lista Vice Admiral, Philippine Coast Guard
Domingo T. Estera Rear Admiral, Philippine Coast Guard
Miguel C. Tabares Commodore, Philippine Coast Guard
Arthur N. Gosingan Commodore, Philippine Coast Guard
Efren L. Taduran Naval Captain, Philippine Coast Guard
Cesar A. Sarile Naval Captain, Philippine Coast Guard
Danilo M. Vilda Naval Captain, Philippine Coast Guard
Elpidio B. Padama Commodore, Philippine Coast Guard
Petitioner bewails the fact that despite the non-submission of their names to the
Commission on Appointments (CA) for confirmation, all of the said respondent officers of
the PCG had assumed their duties and functions. According to petitioner, their respective
appointments are illegal and unconstitutional for failure to undergo the confirmation
process in the CA. Thus, they should be prohibited from discharging their duties and
functions as such officers of the PCG.
In the same vein, petitioner opines that there is no legal basis for the DBM to allow
the disbursement of the salaries and emoluments of respondent officers of the
PCG. Accordingly, he prays that respondent Secretary Boncodin be ordered to desist
from allowing such disbursements until the confirmation of their respective appointments
by the CA.
At the outset, the Court finds petitioner to be without any legal personality to file the
instant petition. We have ruled that a private citizen is allowed to raise constitutional
questions only if he can show that he has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, the injury is fairly
traceable to the challenged action and the injury is likely to be redressed by a favorable
action.[1] In the case at bar, petitioner has failed to clearly demonstrate that he has
personally suffered actual or threatened injury. It should be emphasized that a party
bringing a suit challenging the constitutionality of an act or statute must show not only
that the law or act is invalid, but also that he has sustained or is in immediate, or imminent
danger of sustaining some direct injury as a result of its enforcement and not merely that
he suffers thereby in some indefinite way.[2]
The instant petition cannot even be classified as a taxpayers suit because petitioner
has no interest as such and this case does not involve the exercise by Congress of its
taxing power.
Assuming arguendo that petitioner has the legal personality to question the subject
appointments, the petition will nevertheless fail. As aptly pointed out by the Solicitor
General, the PCG used to be administered and maintained as a separate unit of the
Philippine Navy under Section 4 of RA 5173. It was subsequently placed under the direct
supervision and control of the Secretary of the Department of National Defense (DND)
pursuant to Section 4 of PD 601. Eventually, it was integrated into the Armed Forces of
the Philippines (AFP) as a major subordinate unit of the Philippine Navy under Section

EN BANC

AQUILINO Q. PIMENTEL, JR., G.R. No. 164978

EDGARDO J. ANGARA,
JUAN PONCE ENRILE,
LUISA P. EJERCITO-ESTRADA, Present:
JINGGOY E. ESTRADA,
PANFILO M. LACSON, Davide, Jr., C.J.,
ALFREDO S. LIM,
JAMBY A.S. MADRIGAL, and Puno,
SERGIO R. OSMEA III,
Petitioners, Panganiban,

- versus - Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
EXEC. SECRETARY EDUARDO Callejo, Sr.,
R. ERMITA, FLORENCIO B. ABAD, Azcuna,
AVELINO J. CRUZ, JR., Tinga,
MICHAEL T. DEFENSOR, Chico-Nazario, and
JOSEPH H. DURANO, Garcia, JJ.
RAUL M. GONZALEZ,
ALBERTO G. ROMULO,
RENE C. VILLA, and Promulgated:
ARTHUR C. YAP,
Respondents. October 13, 2005
x-----------------------------------------------------x

DECISION

CARPIO, J.:

The Case
 This is a petition for certiorari and prohibition[1] with a prayer for the
issuance of a writ of preliminary injunction to declare unconstitutional the
appointments issued by President Gloria Macapagal-Arroyo (President Arroyo)
through Executive Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio B.
Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez,
Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap (respondents) as acting
secretaries of their respective departments. The petition also seeks to prohibit
respondents from performing the duties of department secretaries.

Antecedent Facts

The Senate and the House of Representatives (Congress) commenced their

regular session on 26 July 2004. The Commission on Appointments, composed of
Senators and Representatives, was constituted on 25 August 2004.

Meanwhile, President Arroyo issued appointments[2] to respondents as acting

secretaries of their respective departments.

Appointee Department Date of Appointment

Arthur C. Yap Agriculture 15 August 2004

Alberto G. Romulo Foreign Affairs 23 August 2004

Raul M. Gonzalez Justice 23 August 2004

Florencio B. Abad Education 23 August 2004

Avelino J. Cruz, Jr. National Defense 23 August 2004

 Rene C. Villa Agrarian Reform 23 August 2004

Joseph H. Durano Tourism 23 August 2004

Michael T. Defensor Environment and Natural Resources 23 August 2004

The appointment papers are uniformly worded as follows:

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed ACTING
SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person replaced).

By virtue hereof, you may qualify and enter upon the performance of the duties
and functions of the office, furnishing this Office and the Civil Service Commission with
copies of your Oath of Office.

(signed)

Gloria Arroyo

Respondents took their oath of office and assumed duties as acting secretaries.

On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J.

Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile), Luisa P. Ejercito-
Estrada (Senator Ejercito-Estrada), Jinggoy E. Estrada (Senator Estrada), Panfilo M.
Lacson (Senator Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S. Madrigal
(Senator Madrigal), and Sergio R. Osmea, III (Senator Osmea) (petitioners) filed the
present petition as Senators of the Republic of the Philippines.

Congress adjourned on 22 September 2004. On 23 September 2004,

President Arroyo issued ad interim appointments[3] to respondents as secretaries
of the departments to which they were previously appointed in an acting capacity.
The appointment papers are uniformly worded as follows:

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY
[AD INTERIM], DEPARTMENT OF (appropriate department).

By virtue hereof, you may qualify and enter upon the performance of the duties
and functions of the office, furnishing this Office and the Civil Service Commission with
copies of your oath of office.

(signed)

Gloria Arroyo

Issue
 The petition questions the constitutionality of President Arroyos appointment
of respondents as acting secretaries without the consent of the Commission on

Appointments while Congress is in session.

The Courts Ruling

The petition has no merit.

Preliminary Matters

On the Mootness of the Petition

The Solicitor General argues that the petition is moot because President Arroyo had
extended to respondents ad interim appointments on 23 September 2004

immediately after the recess of Congress.

As a rule, the writ of prohibition will not lie to enjoin acts already

done.[4] However, as an exception to the rule on mootness, courts will decide a

question otherwise moot if it is capable of repetition yet evading review.[5]
In the present case, the mootness of the petition does not bar its resolution. The
question of the constitutionality of the Presidents appointment of department
secretaries in an acting capacity while Congress is in session will arise in every such
appointment.

On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature may not

interfere with the exercise of this executive power except in those instances when
the Constitution expressly allows it to interfere.[6] Limitations on the executive
power to appoint are construed strictly against the legislature.[7] The scope of the
legislatures interference in the executives power to appoint is limited to the power
to prescribe the qualifications to an appointive office. Congress cannot appoint a
person to an office in the guise of prescribing qualifications to that office. Neither

may Congress impose on the President the duty to appoint any particular person to
an office.[8]
However, even if the Commission on Appointments is composed of members of

Congress, the exercise of its powers is executive and not legislative. The
Commission on Appointments does not legislate when it exercises its power to give
or withhold consent to presidential appointments. Thus:

xxx The Commission on Appointments is a creature of the Constitution. Although

its membership is confined to members of Congress, said Commission is
independent of Congress. The powers of the Commission do not come from
Congress, but emanate directly from the Constitution. Hence, it is not an agent of
Congress. In fact, the functions of the Commissioner are purely executive in nature.
xxx[9]
On Petitioners Standing

The Solicitor General states that the present petition is a quo warranto proceeding
because, with the exception of Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of department secretaries. The

Solicitor General further states that petitioners may not claim standing as Senators
because no power of the Commission on Appointments has been infringed upon or
violated by the President. xxx If at all, the Commission on Appointments as a body
(rather than individual members of the Congress) may possess standing in this
case.[10]

Petitioners, on the other hand, state that the Court can exercise
its certiorari jurisdiction over unconstitutional acts of the President.[11] Petitioners
further contend that they possess standing because President Arroyos appointment
of department secretaries in an acting capacity while Congress is in session impairs
the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary[12] as basis,
thus:

To the extent that the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in the exercise
of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a

derivative but nonetheless substantial injury, which can be questioned by a member
of Congress. In such a case, any member of Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from Congress,
it is error for petitioners to claim standing in the present case as members of

Congress. President Arroyos issuance of acting appointments while Congress is in

session impairs no power of Congress. Among the petitioners, only the following
are members of the Commission on Appointments of the 13 th Congress: Senator

Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority Floor Leader,
and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as members.

Thus, on the impairment of the prerogatives of members of the Commission

on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and

Osmea have standing in the present petition. This is in contrast to Senators Pimentel,
Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived

prerogatives as members of Congress, possess no standing in the present petition.

The Constitutionality of President Arroyos Issuance

of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed

respondents as acting secretaries because in case of a vacancy in the Office of a

Secretary, it is only an Undersecretary who can be designated as Acting

Secretary.[13] Petitioners base their argument on Section 10, Chapter 2, Book IV of
Executive Order No. 292 (EO 292),[14]which enumerates the powers and duties of
the undersecretary. Paragraph 5 of Section 10 reads:
 SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary
shall:

xxx

(5) Temporarily discharge the duties of the Secretary in the latters absence
or inability to discharge his duties for any cause or in case of vacancy of the said
office, unless otherwise provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing powers and duties among
them. The President shall likewise make the temporary designation of Acting
Secretary from among them; and

xxx

Petitioners further assert that while Congress is in session, there can be no

appointments, whether regular or acting, to a vacant position of an office needing

confirmation by the Commission on Appointments, without first having obtained its
consent.[15]

In sharp contrast, respondents maintain that the President can issue appointments in
an acting capacity to department secretaries without the consent of the Commission

on Appointments even while Congress is in session. Respondents point to Section

16, Article VII of the 1987 Constitution. Section 16 reads:
SEC. 16. 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 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.

Respondents also rely on EO 292, which devotes a chapter to the Presidents

power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292
read:
SEC. 16. Power of Appointment. The President shall exercise the power
to appoint such officials as provided for in the Constitution and laws.

SEC. 17. Power to Issue Temporary Designation. (1) The President may
temporarily designate an officer already in the government service or any
other competent person to perform the functions of an office in the executive
branch, appointment to which is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to perform his duties by reason of
illness, absence or any other cause; or (b) there exists a vacancy[.]

(2) The person designated shall receive the compensation attached to the
position, unless he is already in the government service in which case he shall
receive only such additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or
agency concerned.
(3) In no case shall a temporary designation exceed one (1)
year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought.

Petitioners assert that the President cannot issue appointments in an acting capacity
to department secretaries while Congress is in session because the law does not give

the President such power. In contrast, respondents insist that the President can issue
such appointments because no law prohibits such appointments.
The essence of an appointment in an acting capacity is its temporary nature. It is a
stop-gap measure intended to fill an office for a limited time until the appointment

of a permanent occupant to the office.[16] In case of vacancy in an office occupied by

an alter ego of the President, such as the office of a department secretary, the
President must necessarily appoint an alter ego of her choice as acting secretary

before the permanent appointee of her choice could assume office.

Congress, through a law, cannot impose on the President the obligation to

appoint automatically the undersecretary as her temporary alter ego. An alter ego,

whether temporary or permanent, holds a position of great trust and confidence.

Congress, in the guise of prescribing qualifications to an office, cannot impose on
the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in

session. Since a department secretary is the alter ego of the President, the acting

appointee to the office must necessarily have the Presidents confidence. Thus, by the
very nature of the office of a department secretary, the President must appoint in an
acting capacity a person of her choice even while Congress is in session. That person
may or may not be the permanent appointee, but practical reasons may make
it expedient that the acting appointee will also be the permanent appointee.

The law expressly allows the President to make such acting appointment.
Section 17, Chapter 5, Title I, Book III of EO 292 states that [t]he President may
temporarily designate an officer already in the government service or any other
competent person to perform the functions of an office in the executive branch.
Thus, the President may even appoint in an acting capacity a person not yet in the

government service, as long as the President deems that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in the
President by the Constitution, because it only applies to appointments vested in the

President by law. Petitioners forget that Congress is not the only source of law. Law
refers to the Constitution, statutes or acts of Congress, municipal ordinances,
implementing rules issued pursuant to law, and judicial decisions. [17]

Finally, petitioners claim that the issuance of appointments in an acting capacity is

susceptible to abuse. Petitioners fail to consider that acting appointments cannot
exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III
of EO 292. The law has incorporated this safeguard to prevent abuses, like the use
of acting appointments as a way to circumvent confirmation by the Commission on

Appointments.

In distinguishing ad interim appointments from appointments in an acting

capacity, a noted textbook writer on constitutional law has observed:

Ad-interim appointments must be distinguished from appointments in an

acting capacity. Both of them are effective upon acceptance. But ad-interim
appointments are extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy. Moreover ad-interim
appointments are submitted to the Commission on Appointments for confirmation
or rejection; acting appointments are not submitted to the Commission on
Appointments. Acting appointments are a way of temporarily filling important
offices but, if abused, they can also be a way of circumventing the need for
confirmation by the Commission on Appointments.[18]
However, we find no abuse in the present case. The absence of abuse is readily
apparent from President Arroyos issuance of ad interim appointments to
respondents immediatelyupon the recess of Congress, way before the lapse of one
year.

WHEREFORE, we DISMISS the present petition for certiorari and prohibition.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

REYNATO S. PUNO ARTEMIO V. PANGANIBAN

Associate Justice
Associate Justice
 LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice
Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice
 DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

[1]
Under Rule 65 of the Rules of Court.
[2]
Rollo, pp. 21-28.

[3]
Rollo, pp. 45-60.

[4]
Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Gil v. Benipayo,
G.R. No. 148179, 26 June 2001 (minute resolution).
[5]
Tolentino v. Commission on Elections, G.R. No. 148334, 21 January 2004, 420 SCRA 438 citing Chief Supt. Acop
v. Secretary Guingona, Jr., 433 Phil. 62 (2002); Viola v. Hon. Alunan III, 343 Phil. 184 (1997); Alunan III v.
Mirasol, 342 Phil. 467 (1997).

[6]
See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY
768 (1996).
[7]
See Sarmiento III v. Mison, No. L-79974, 17 December 1987, 156 SCRA 549.
[8]
See Manalang v. Quitoriano, et al., 94 Phil. 903 (1954); Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223
SCRA 568.
[9]
Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962, 5 SCRA 1. But see Justice Concepcions Concurring Opinion
in Guevara v. Inocentes, 123 Phil. 201, 211 (1966).

[10]
Rollo, p. 38.
[11]
Ibid., p. 65.
[12]
G.R. No. 159085, 3 February 2004, 421 SCRA 656 citing Philippine Constitution Association v. Enriquez, G.R.
No. 113105, 19 August 1994, 235 SCRA 506.
[13]
Rollo, p. 14.
[14]
Also known as the Administrative Code of 1987.
[15]
Rollo, p. 12.

[16]
See Marohombsar v. Alonto, Jr., G.R. No. 93711, 25 February 1991, 194 SCRA 390.
[17]
Article 8, Civil Code. See National Amnesty Commission v. Commission on Audit, G.R. No. 156982, 8 September
2004, 437 SCRA 655.
[18]
JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 772
(1996).