FELIZARDO S. PACETE, PETITIONER, VS. THE SECRETARY OF THE COM­MISSION ON APPOINTMENTS CONGRESS OF THE PHILIPPINES, THE SECRETARY OF JUSTICE & THE DISBURSING OFFICER OF THE DEPAR…

The question raised in this mandamus and prohibition proceeding,
whether the filing of a motion for reconsideration with the Commission on
Appointments, without its being thereafter acted on, suffices to set at naught
a confirmation duly made of an ad interim appointment, is not a
new one.  That was put to us in Altarejos
v. Molo.^[1]
As set forth in the opinion of the Chief Justice, the answer must be in the
negative.  The confirmation stands; it
must be given force and effect.  As we
decided then, so we do now.  As a
consequence, petitioner, as will be more fully explained, has made out a case
for mandamus and prohibition.  He is
entitled to the remedies prayed for.

The facts are undisputed. 
In his suit for mandamus and prohibition filed with this Court on April
4, 1966, petitioner Felizardo S. Pacete alleged that he was appointed by the
then President of the Philippines on August 31, 1964 as Municipal Judge of
Pigcawayan, Cotabato.  He assumed office
on September 11, 1964 and discharged his duties as such.  As his appointment was made during the recess
of Congress, it was submitted to the Commission on Appointments at its next
session in 1965.  On May 20 of that year,
he was unanimously confirmed.  As a
matter of fact, two days later, he was sent a congratulatory telegram by the
then Senate President Ferdinand E. Marcos, who was likewise the Chairman of the
Commission on Appointments.^[2]
More than nine months after such confirmation, to be exact on February 7, 1966,
the then Secretary of Justice, whom he likewise included in his petition,
through the Judicial Super­intendent, advised petitioner to vacate his position
as municipal judge, the ground being that his appointment had been
by-passed.  Petitioner was taken by
surprise and sought clarification from the principal respondent, the then
Secretary of the Commission on Appointments.^[3]
He was informed that on May 21, 1965, a day after his confirmation, one of the
members of the Commission on Appointments, the then Senator Rodolfo Ganzon,
wrote to its Chairman stating that he was filing a motion for the
reconsideration of the confirmation of the appointment of petitioner as
municipal judge of Pigcawayan, Cotabato, in view of derogatory information
which he had received.^[4]
Respondent Secretary of the Commission on Appointments thus was led to notify
the then Secretary of Justice accordingly, following what he considered to be
the prevailing practice of such body that the mere presentation of such letter
“automatically vacated the confirmation of the appointment in question * *
*.”^[5]
Respondent Secretary of Justice through the Judicial Superintendent then
advised petitioner that he should vacate his position as municipal judge, as he
had not been duly confirmed.  The
Disbursing Officer of the Department of Justice was likewise named respondent
as he had, as a consequence, withheld petitioner’s salaries.^[6]

Petitioner would buttress his plea for prohibition against the
enforcement of the directive of respondent Secretary of Justice for him to vacate
his position and mandamus to compel respondent Secretary of the Commission on
Appointments to issue to him the certificate of confirmation on the ground that
the letter of the then Senator Ganzon, even on the assumption that it was a
motion to reconsider an appointment duly confirmed, was without force and
effect as it was not approved by the body as a whole.  It is his contention that the confirmation of
his appointment had become final and executory upon the adjournment of the
fourth regular session of the Fifth Congress at midnight of May 21, 1965.^[7]
He further submitted “that the power to approve or disapprove appointments
is conferred by the Constitution on the Commission on Appointments as a body
and not on the members individually.  The
Commission exercises this power thru the vote of the majority of the members
present at a quorum as provided by Section 10 of its Rules.  Once an appointment is approved by that
majority, the approval becomes an act of the Commission and it cannot be
changed, voided, vacated or set aside except by the same Commission acting thru
the required majority.  A mere motion to
reconsider it, unless approved by said majority, has no force and effect.  To contend otherwise is to make the will of a
single member prevail over the will of the Commission and to make that member
more powerful than the very Commission of which he is only a part.”^[8]

In a resolution dated April 13, 1966, this Court required
respondents to answer such petition.  In
the answer of respondent Secretary of the Commission filed on May 18, 1966, the
dismissal of the suit was prayed for on the ground that there was a recall of
the confirmation of petitioner’s appointment upon the filing of the motion for
reconsideration by Senator Ganzon.  It
was likewise alleged as a special defense that there was no infringement of the
Constitution, the question involved being merely one of interpretation or
construction of the rules of the Commission involving its internal business
which cannot be made a subject of judicial inquiry.^[9]
The respondent Secretary of Justice as well as respondent Disbursing Officer of
the Department of Justice, in the answer filed on their behalf on May 21, 1966
by the then Solicitor General, now Associate Justice, Antonio P. Barredo,
admitted the facts, but sought the dismissal of the petition on the ground that
with the notification of respondent Secretary of the Commission on Appointments
that petitioner’s appointment was not duly confirmed, respondent Secretary of
Justice had no alternative but to give it full faith and credence coming as it
did from the agency entrusted by the Constitution with the power to confirm.^[10]

At the hearing scheduled on July 20, 1966, the parties, after
arguing, were given an additional period of ten days within which to submit
memoranda of authorities.  In
petitioner’s memorandum submitted on August 1, 1966, it was contended that his
confirmation became final and irrevocable upon the adjournment of the fourth
regular session of the Fifth Congress on May 21, 1965, as no rule of the
Commission as to a motion for reconsideration could have the force and effect
of defeating the constitutional provision that an ad interim
appointment is effective “until disapproved by the Commission on
Appointments or until the adjournment of the next session of the
Congress.”^[11]
The memorandum submitted for the respondents squarely disputed such a
contention on the view that there could be no confirmation in the
constitutional sense until a motion for reconsideration had been turned down,
invoking at the same time the principle of the respect to be accorded the
actuation of an independent constitutional agency like the Commission on
Appointments.

As was noted, the controlling principle is supplied by Altarejos
v. Molo,^[12]
which interpreted Rule 21 of the Revised Rules of the Commission on
Appointments, which reads: 
“Resolution of the Commission on any appointment may be
reconsidered on motion by a member presented not more than one (1) day after
their approval.  If a majority of the
members present concur to grant a reconsideration, the appointment shall be
reopened and submitted anew to the Commission. 
Any motion to reconsider the vote on any appointment may be laid on the
table, this shall be a final disposition of such a motion.” Our holding
was that the mere filing of a motion for reconsideration did not have the
effect of setting aside a confirmation. 
There was a need for its being duly approved.  Hence, as set forth at the outset, petitioner
must prevail.

1.  Altarejos v. Molo was an
original action for mandamus to compel respondent therein as Secretary of the
Commission on Appointments to issue a certificate of confirmation of
petitioner’s appointment as Provincial Assessor of Masbate.  He was extended an ad interim
appointment on July 24, 1964.  He took
his oath of office and qualified as such on August 1, 1964.  His appointment was then submitted to the
Commission on Appointments during the regular session of Congress in 1965.  It was confirmed by the Commission on
Appointments on May 19, 1965.  On the
same day, a member thereof, Congressman Jose Aldeguer, filed with its
Secretary, respondent Molo, a motion for reconsideration.  The next day, there was a motion by the then
Senator Francisco Rodrigo that all pending motions for reconsideration be laid
on the table.  It was approved.  Then came the adjournment on May 20,
1965.  Subsequently, about a week later,
Congressman Aldeguer withdrew his motion for reconsideration.^[13]

This Court gave full attention to the argument that the motion
for reconsideration of Congressman Aldeguer on May 19, 1965 had the effect of
recalling the confirmation of petitioner’s appointment and that, accordingly,
it should be considered non-existent.  It
rejected it.  The Chief Justice, who
spoke for the Court, explained why: 
“This pretense is devoid of merit. 
Respondent’s theory would give to the mere filing of a motion for
reconsideration the effect which it would have if the motion were approved,
and, hence, would dispense with the necessity of such approval, for which the
concurrence of a majority of the members present is necessary.  It is inconsistent with Rule 21 of the
Revised Rules of the Commission, reading:’ * * * Resolution of the Commission
on any appointment may be reconsidered on motion by a member presented not more
than one (1) day after their approval.  If
a majority of the members present concur to grant a reconsideration, the
appointment shall be reopened and submitted anew to the Commission.  Any motion to reconsider the vote on any
appointment may be laid on the table, this shall be a final disposition of
such a motion.'”^[14]
His opinion continued:  “Pursuant to
this provision, the vote of a majority of the members present in favor of the
motion for reconsideration is necessary to ‘reopen’ the appointment – and,
hence, to ‘recall’ its confirmation – and to require a resubmission of the
appointment for confirmation.”^[15]
Moreover, in holding that this Court “cannot escape the conclusion that
petitioner’s appointment as Provincial Assessor of Masbate” had been duly
confirmed, the Chief Justice likewise noted the categorical answer of the
Chairman of the Commission on Appointments to a question by Senator Almendras
as to the effect of motions for reconsideration unacted upon after adjournment.  Thus: 
“In case of an adjournment sine die, the motions for
reconsideration are considered as not approved and therefore the motions for
reconsiderations are not valid nor of any effect whatsoever.”^[16]
When the question was repeated by Senator Almendras, who did not want to leave
any doubt on the matter, this was the reply of the Chairman:  “The ruling of the Chair is
reiterated.  In case of an adjournment sine
die, the period for filing the motion for reconsideration having
expired, under Sec. 22, then the motion for reconsideration not having been
acted upon is not approved and, therefore, has no effect whatsoever.  The confirmation, therefore, will stand.”^[17]

Nothing can be clearer, therefore, than that this Court is
committed to the principle that a mere motion for reconsideration to a
confirmation duly made which is not approved cannot have the effect of setting
aside such confirmation, a principle that is based not merely on the express
language of Rule 21, but a reflection of the settled interpretation of the
Commission on Appointments, speaking through its Chairman.  While on certain aspects not material, the
facts of this case may be distinguished, from Altarejos v. Molo, there being no
motion to lay on the table and no withdrawal of such motion for
reconsideration, the principle that calls for application cannot be any
different.  What is decisive is that a
confirmation duly made is not nullified simply by a motion for reconsideration
being filed, without its being voted upon and approved.

2.  The Altarejos ruling
possesses the merit of interpreting Rule 21 of the Commission on Appointments
conformably to the letter and spirit of the constitutional provisions on the
appointing power of the President.  The
first one reads:  “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.”^[18]
The other provision is worded thus: 
“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.”^[19]

A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the Commission on
Appointments when Congress is in session and when it is in recess.  In the former the President nominates, and
only upon the consent of the Commission on Appointments may the person thus
named assume office.  It is not so with
reference to ad interim appointments.  It takes effect at once.  The individual chosen may thus qualify and
perform his function without loss of time. 
His title to such office is complete. 
In the language of the Constitution, the appointment is effective
“until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.”^[20]

The constitutional requirement is clear.  There must either be a rejection by the
Commission on Appointments or non-action on its part.  No such thing happened in this case.  Petitioner, as pointed out, had instead in
his favor a unanimous vote of confirmation. 
He could thus invoke constitutional protection.  For respondents to argue that the mere filing
of a motion for reconsideration did suffice to set it aside, even in the
absence of any further action, is, as stressed by petitioner, to lose sight of
what is provided in the Constitution. 
That would be moreover tantamount to imparting to a move of a single
member of a collective body a decisive weight. 
It is bad enough if the minority were to prevail.  A one-man rule, which is the effect of what
respondent Secretary of the Commission on Appointments contends, is infinitely
worse.  It is indefensible in principle
and pernicious in operation.  It can find
no shelter in the constitutional prescription. 
Rather it makes a mockery of what is therein ordained.  Petitioner’s stand is thus unassailable.

3.  Nor does the insistence
of respondent Secretary of the Commission on Appointments, in his answer, that
the question involved is beyond the jurisdiction of this Court, elicit
approval.  It would extend the boundaries
of the political question doctrine beyond its legitimate limits.  The courts are called upon to see to it that
private rights are not invaded.  Thus
even legislative acts and executive orders are not beyond the pale of judicial
scrutiny.  Certainly, there is nothing
sacrosanct about a rule of the Commission on Appointments, especially so, when
as in this case, a construction sought to be fastened on it would defeat the
right of an individual to a public office. 
It certainly can be inquired into in an appropriate case, although the
utmost deference should be paid to the interpretation accorded it by the
Commission on Appointments itself.  In
the terse language of Justice Brandeis, speaking of the rules of the United
States Senate, which, under its Constitution, has the task of
confirmation:  “As the construction
to be given to the rules affects persons other than members of the Senate, the
question presented is of necessity a judicial one.”^[21]
The task becomes unavoidable when claims arising from the express language of
the Constitution are pressed upon the judiciary.  So it is in this case.  It is a truism that under the circumstances,
what cannot be ignored is the primacy of what the fundamental law ordains.

Such an approach, it is heartening to note, is implicit in the
memorandum on behalf of respondent Secretary of Justice, submitted by the then
Solicitor General Barredo.  Thus:  “Although the Commission on Appointments
is not a power in our tripartite system of government, it is to all intents and
purposes, like the Electoral Tribunals, when acting within the limits of its
authority, an independent organ (Cf. Angara vs. Electoral Commission, 63 Phil.
139).  Its actuation in the exercise of
its power to approve appointments submitted to it by the President of the
Philippines is exempt from judicial supervision and interference, except on a
clear showing of such arbitrary and improvident use of the powers as will
constitute a denial of due process (Cf. Morero vs. Bocar, 37 O. G. 445).”^[22]
As due process is impressed with both substantive and procedural significance,
the scope of judicial inquiry is thus not unduly limited.

WHEREFORE, petitioner is entitled to the writ of mandamus
and the Secretary of the Commission on Appointments is commanded to issue the
certificate of confirmation prayed for by petitioner.  The incumbent Secretary of Justice is
prohibited from giving any further force and effect to the Department of
Justice directive of February 7, 1966 advising petitioner to vacate his
position as municipal judge in view of the communication received from the then
Secretary of the Commission on Appointments, inasmuch as the right of
petitioner to perform his functions as municipal judge of Pigcawayan, Cotabato
is in accordance with law, his confirmation having been duly confirmed.  No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar,
Villamor, and Makasiar, JJ., concur.

Teehankee and Barredo,
JJ., took no part.

Dizon and Castro, JJ., on official leave.

^[1]
L-25726, October 21, 1968, 25 SCRA 550.

^[2]
Petition, paragraphs 1 and 2.

^[3] Ibid,
paragraph 4.  The then Secretary of the
Commission on Appointments was Teodoro K. Molo, likewise the respondent in
Altarejos v. Molo.

^[4] Ibid,
paragraph 5.

^[5] Ibid,
paragraph 5 and Exhibit H.

^[6] Ibid,
paragraph 25.

^[7] Ibid,
paragraph 8.

^[8] Ibid,
paragraph 9.

^[9]
Answer of respondent Secretary of the Commission on Appointments, A, paragraph
4 and C.

^[10]
Answer of respondent Secretary of Justice and Disbursing Officer of the
Department of Justice.

^[11] Memorandum
for Petitioner citing Section 10 paragraph (4), Article VII of the Constitution
of the Philippines, which provides: 
“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 adjournment of the
next session of the Congress.”

^[12]
L-25726, October 21, 1968, 25 SCRA 550.

^[13] Ibid,
pp. 551-552.

^[14] Ibid,
p. 553.

^[15] Ibid.

^[16] Ibid,
p. 554.

^[17] Ibid,
p. 555.

^[18]
Article VII, Section 10, paragraph (3), Constitution.

^[19] Ibid,
paragraph (4).

^[20] Ibid.

^[21]
United States v. Smith, 286 US 6, 33 (1932).

^[22]
Memorandum, p. 4.