THE NACIONALISTA PARTY, PETITIONER, VS. FELIX ANGELO BAUTISTA, SOLICITOR GENERAL OF THE PHILIPPINES, RESPONDENT.

The prayer of the petition filed in this case reads, as
follows:

Wherefore, petitioner respectfully prays that after due hearing
a writ of prohibition issue commanding the respondent Solicitor General to
desist forever from acting as acting member of the Commission on Elections under
the designation rendered to him by President Quirino on November 9, 1949 unless
he is legally appointed as regular member of the said Commission on Elections *
* *.

It is averred, in support of the prayer, that on 9 November
1949, while the respondent held, as he still holds, the office of Solicitor
General of the Philippines, the President designated him as acting member of the
Commission on Elections, and on that same date the respondent took the oath of
office and forthwith proceeded to assume and perform the duties of the office;
that at the time of the respondent’s designation he had not resigned from the
office of Solicitor General of the Philippines nor does he intend to do so but
continues to exercise all the powers and duties of the last mentioned
office.

It is contended that such designation is invalid, illegal, and
unconstitutional, because there was on 9 November 1949 no vacancy in the
Commission on Elections, for the acceptance, approval, or granting of the
application for retirement filed by Commissioner Francisco Enage on such date
constitutes or amounts to abuse of discretion and was done in bad faith by the
President and therefore null and void; and because Commissioner Enage is
entitled to leave and until after the expiration of such leave he does not cease
to be a member of the Commission on Elections. The contention that the granting
of the retirement application of Commissioner Enage constitutes an abuse of
discretion and was made in bad faith is based upon the allegation and claim that
the Commissioner “had voted to suspend the elections in Negros Occidental and
Lanao and the Liberal Party fears he might vote to annul said elections.”

It is claimed, in the alternative, that even if there was on
that date a vacancy in the Commission on Elections, still the respondent’s
designation to act as such member of the Commission, in addition to his duties,
as Solicitor General, pending the appointment of a permanent member, is invalid,
illegal, and unconstitutional, because membership in the Commission is a
permanent constitutional office with a fixed tenure, and, therefore, no
designation of a person or officer in an acting capacity could and can be made;
because a member of the Commission cannot at the same time hold any other
office; and because the respondent as Solicitor General belongs to the executive
department and cannot assume the powers and duties of a member in the
Commission.

There are other averments that do not go to the root of the
main question raised in this case, such as the subordinate position of the
office of the respondent to that of the Secretary of Justice who as a member of
the Cabinet campaigned for the election of the present incumbent to the
presidency of the Republic; the defense of the President made by the respondent
in the impeachment proceedings in Congress and in the emergency powers cases in
this Court; the alleged advice given the President by his advisers, among whom
was the respondent, not to suspend the elections in Occidental Negros and Lanao;
the alleged setting aside or revocation of the Commission’s resolutions on the
suspension of elections in Occidental Negros and Lanao by the respondent and
Chairman Vera, and, for these reasons, it is claimed that impartiality of
judgment in masters concerning the last elections cannot be expected of the
respondent, thereby impairing the independence of the Commission on
Elections.

The answer of the respondent admits his designation as acting
member of the Commission on Elections in a temporary capacity pending the
appointment of a permanent one and retention of his office as Solicitor General,
and denies the other averments, conclusions, claims and contentions set out in
the petition.

The respondent contends that his designation is lawful and
valid, not only because the power to appoint vested in the President includes
the power to designate, but also because it is expressly so provided in
Commonwealth Act No. 588; and that the offices held by him, one permanent and
the other temporary, are not incompatible.

The claim that the office held by Commissioner Francisco Enage
is not vacant for, the reasons given by the petitioner is without foundation in
law and in fact, because Francisco Enage as member of the Commission on
Elections applied for retirement in 1941 and reiterated his application in 1946
and 1948 and the President of the Philippines granted it on 9 November 1949, and
because even if he were entitled to leave he did not apply for it. So that upon
acceptance of his application for retirement without applying for leave, even if
he were entitled thereto, Francisco Enage vacated his office in the Commission
on Elections. Whether the granting of the application for retirement constitutes
an abuse of discretion or was done in bad faith by the President, as alleged and
claimed by the petitioner, is a subject matter into which we are not at liberty
to inquire because of the well known principle of separation of powers. Besides,
the President of the Philippines is not a party to these proceedings.
Nevertheless, as petitioner predicates its conclusion of “bad faith” and “abuse
of discretion” upon the allegation that the Commission “had voted to suspend the
elections in Negros Occidental and Lanao and the Liberal Party fears he might
vote to annul said elections,” it may be stated to set matters aright that there
is no legal basis for this allegation, because the Commission on Elections
cannot vote to suspend an election but may vote to recommend or may recommend
only to the President the suspension of an election “when for any serious cause
the holding of an election should become impossible in any political division or
subdivision,” pursuant to section 8 of Republic Act No. 180, and because the
Commission on Elections cannot “vote to annul said elections” for it has no
power to annul an election. What at most it may do is to express its views in
the report to be submitted to the President and the Congress on the manner in
which such election was conducted, pursuant to section 4, Article X, of the
Constitution.

As there was a vacancy in the membership of the Commission on
Elections, the next point to determine is whether the designation of the
respondent as Acting Member of the Commission on Elections, in addition to his
duties as Solicitor General, pending the appointment of a permanent member to
fill the vacancy caused by the retirement of Commissioner Francisco Enage, is
unlawful and unconstitutional.

Under the Constitution, the Commission on Elections is an
independent body or institution (Article X of the Constitution), just as the
General Auditing Office is an independent office (Article XI of the
Constitution). Whatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government. The membership of the
Commission is for a fixed period of nine years, except as to the first members
appointed who were to hold office for nine, six and three years. With these
periods, it was the intention to have one position vacant every three years, so
that no President can appoint more than one Commissioner, thereby preserving and
safeguarding the independence and impartiality of the Commission. But despite
all the precautions, the Constitution failed to plug the loophole or forestall
the possibility that a member or members die, resign, retire, as in this case,
or be removed by impeachment or disqualified, or become physically or mentally
incapable, to perform the duties and functions of the office. By death,
resignation, retirement, or removal by impeachment, a vacancy in the Commission
is created. In these cases the President may appoint a Commissioner for the
unexpired term. When such an event should come to pass the limitation to one
appointment by a President would be ineffectual. By disqualification or
incapacity no vacancy is created. When this possibility should eventuate to two
Commissioners, the Commission’s functions would be stopped or paralyzed.
Perhaps, a designation of other members during the incumbents temporary
disability would not harm the public interest and common weal. But the case at
bar is not one of disqualification or incapacity creating no vacancy but of
retirement resulting in a vacancy. The principle or rule that the power to
appoint implies or includes the authority to designate, in the same way that
that power carries with it the authority to remove, under the theory that the
whole includes and is greater than the part, is not absolute but subject to
certain limitations. Thus, justices of the Court of Appeals appointed by the
President with the consent of the Commission on Appointments of the Congress may
be removed by impeachment only (sec. 24, Rep. Act No. 296); the President may
remove a member of the judiciary only upon recommendation of the Supreme Court,
after inquiry, in the case of judges of the Courts of First Instance (sec. 67,
Rep. Act No. 296), and upon recommendation of the judge of the Court of First
Instance or on the President’s own motion, after investigation, in the case of
justices of the peace (sec. 97, Rep. Act No. 296); and the President or a
department head may remove an officer or employee in the Civil Service,
appointed either by him or by the department head upon the recommendation of the
bureau head, only for cause as provided by law (sec. 4, Article XII, of the
Constitution). Likewise, if it, were not for the express provision of law (secs.
9 and 27, Rep. Act No. 296), the President could not designate a justice of the
Court of Appeals or a judge of the Court of First Instance to fill temporarily a
vacant office of a justice in the Supreme Court or in the Court of Appeals; and
he cannot certainly designate an attorney to fill temporarily such vacancy in
the Supreme Court or in the Court of Appeals, but must appoint him ad
interim, if Congress is not in session, or nominate him, if Congress is in
session. The President cannot designate an attorney to fill temporarily a vacant
position of a judge in a Court of First Instance or of a justice of the
peace.

By the very nature of their functions, the members of the
Commission on Elections must be independent. They must be made to feel that they
are secured in the tenure of their office and entitled to fixed emoluments
during their incumbency (economic security), so as to make them impartial in the
performance of their functions—their powers and duties. They are not allowed to
do certain things, such as to engage in the practice of a profession; to
intervene, directly or indirectly, in the management or control of any private
enterprise; or to be financially interested in any contract with the Government
or any subdivision or instrumentality thereof (sec. 3, Article X, of the
Constitution). These safeguards are all conducive or tend to Create or bring
about a condition or state of mind that will lead the members of the Commission
to perform with impartiality their great and important task and functions. That
independence and impartiality may be shaken and destroyed by a designation of a
person or officer to act temporarily in the Commission on Elections. And,
although Commonwealth Act No. 588 provides that such temporary designation
“shall in no case continue beyond the date of the adjournment of the regular
session of the National Assembly (Congress) following such designation,” still
such limit to the designation does not remove the cause for the impairment of
the independence of one designated in a temporary capacity to the Commission on
Elections. It would be more in keeping with the intent, purpose and aim of the
framers of the Constitution to appoint a permanent Commissioner than to
designate one to act temporarily. Moreover, the permanent office of the
respondent may not, from the strict legal point of view, be incompatible with
the temporary one to which he has been designated, tested by the nature and
character of the functions he has to perform in both offices, but in a broad
sense there is an incompatibility, because his duties and functions as Solicitor
General require that all his time be devoted to their efficient, performance.
Nothing short of tiiat is required and expected of him.

Before proceeding to dispose of the last point involved in this
controversy we notice that the petitioner alleges that it is organized and
registered under the laws of the Philippines. It does not aver that it is
incorporated to entitle it to bring this action. It may be organized and
registered as a political party in or with the Commission on Elections for the
purposes of the Revised Election Code (Republic Act No. 180), but for the
purpose of bringing an action in the courts of justice such organization and
registration are not sufficient. It has to be incorporated under Act 1459 for
“only natural or juridical persons may be parties in a civil action.” (Sec. 1,
Rule 3.) But this technical defect may be cured by allowing the substitution of
the real parties in interest for the petitioner.

The last point is whether prohibition is the proper remedy.
Strictly speaking, there are no proceedings of the Commission on Elections in
the exercise of its judicial or ministerial functions, which are being performed
by it without or in excess of its jurisdiction, or with grave abuse of its
discretion (sec. 2, Rule 67). The only basis for the petition is that the
designation of the respondent as temporary member of the Commission on Elections
is illegal and invalid because it offends against the Constitution. This special
civil action as our Rules call it, or this extraordinary legal remedy following
the classical or chancery nomenclature is in effect to test the validity or
legality of the respondent’s designation in a temporary capacity as member of
the Commission on Elections pending the appointment of a permanent member or
Commissioner. It is in the nature of a quo warranto, and as such it may
only be instituted by the party who claims to be entitled to the office (sec. 6,
Rule 68) or by the Solicitor General (secs. 3, 4, Rule 68). The authorities and
decisions of courts are almost unanimous that prohibition will not lie to
determine the title of a de facto judicial officer, since its only
function is to prevent a usurpation of jurisdiction by a subordinate court
(High’s Extraordinary Legal Remedies, 3d ed., p. 715; Tayko vs. Capistrano, 53
Phil., 866, 871). In the case at bar, however, as we have found that the
respondent’s designation to act temporarily as member of the Commission on
Elections is unlawful because it offends against the provisions of the
Constitution creating the Commission on Elections, the dismissal of the petition
would deny and deprive the parties that are affected by such designation of a
remedy and relief, because no one is entitled now to the office and a party who
is not entitled to the office may not institute quo warranto
proceedings, and the respondent as Solicitor General, the only other party who
may institute the proceedings, would not proceed against himself. In these
circumstances, it is incumbent upon and the duty of this Court to grant a
remedy. There are cases involving a situation similar to the one under
consideration wherein it was ruled that the remedy of prohibition may lie. In
his treatise entitled “Extraordinary Legal Remedies,” High on this point
says:

Thus, when the legislature have, by an unconstitutional
statute, referred to a body of judges the determination of the validity of
a statute concerning the liability of the state upon bonds issued in aid of
railways, prohibition will lie to prevent such body from acting upon the
matters thus submitted. So when an act of legislature delegates to a judge
powers partly judicial and partly of a legislative character, as regards the
determination of petitions for the incorporation of villages, the act being
held unconstitutional because assuming to delegate legislative powers to a court
or judicial body, prohibition will lie to prevent the exercise of the powers
thus conferred. (High’s Extraordinary Legal Remedies, 3d ed., p. 708;
Italics supplied.)

Prohibition will not be granted as a substitute for quo
warranto for the purpose of trying title to a judicial office by restraining an
intruder or de facto officer from acting, on the ground that he is an intruder
or a de facto officer. (22 R.C.L., 17.) However, in Chambers vs.
Jennings (1702) 2 Salk. 553, 91 Eng. Reprint 469, involving an action in the
Court of Honor, “Holt, Ch. J., doubted whether there was or could be any such
court, but said a prohibition would lie to a pretended court.” (77 A.
L. R., 247.) (Italics supplied.)

Thus, in Ex parte Roundtree (1874) 51 Ala. 42, where the
statute in question purported to create “the law and equity court of Morgan
County,” and, in contravention of the Constitution, which provided that the
judges of inferior courts should be elected by the people, declared that the
circuit judge of a designated court should act as judge of the new court, it was
held that prohibition was a proper remedy, and, in fact, “the only adequate
remedy,” to prevent the circuit judge from presiding in the court created, and
taking or exercising jurisdiction of a certain cause therein pending against the
petitioner, and proceeding against the petitioner, who had been summoned as a
juror. The Supreme Court declared that if a court against which a writ of
prohibition,is sought is one of established jurisdiction, a plea that the
subject matter of a particular suit lies without its jurisdiction, or that the
party is not amenable to its cognizance, will ordinarily afford full relief;
“but, when the question involves the legal existence and construction of a
court,—a denial of all jurisdiction, and not of the particular jurisdiction
proposed to be exercised,—a prohibition * * * is the only adequate remedy.”

So, in Curtis vs. Cornish (1912) 109 Me. 384, 84 A. 799, where
a statute was plainly unconstitutional in so far as it provided for the creation
of a tribunal of justices to hear and consider accusations of corrupt practices
in elections, made no provision for exceptions, and denied the right of appeal,
except as to questions of the eligibility of candidates to public office (so
that in a particular case there was no means of review except through certiorari
or writ of error, neither of which would lie until after the unconstitutional
tribunal should have completed its hearings and made futile findings which it
had no jurisdiction to make, and both of which were otherwise so defective under
the circumstances as to be remedies in form rather than in substance), it was
held proper to determine an issue as to the constitutionality of the statute in
a prohibition proceeding.

In State ex rel. Hovey vs. Noble (1889) 118 Ind., 350,
21 N. E., 244, 4 L. R. A., 101, 10 Am. St. Rep., 143, where a writ of
prohibition was issued against certain persons to prevent their acting as
supreme court commissioners by appointment made under an unconstitutional
statute, the somewhat lengthy opinion contains no. suggestion of doubt as to the
propriety of the remedy in view of the conclusion that that statute in its
entirety was utterly void. The statute purported to create the offices of
commissioners of the supreme court as well as to provide for the appointment of
commissioners. (113 A; L. R., 799.)

The foregoing authorities are invoked in view of the peculiar
and extraordinary circumstances obtaining in this case already referred to, to
wit: that as no one is entitled to the office there is no party who in his’ name
may institute quo warranto proceedings, and that the respondent,. the
only other party who may institute the proceedings in the name of the Republic
of the Philippines, would not proceed against himself. Were it not for this
anomalous situation where there would be no remedy to redress a constitutional
transgression, we would adhere strictly to the time-honored rule that to test
the right to an office quo warranto proceedings is the proper
remedy.

The petitioner is granted five days within which to amend its
petition so as to substitute the real parties in interest for it (the
petitioner), or to show that it is a juridical person entitled to institute
these proceedings. Otherwise, or if the petitioner does not amend its petition
or does not show that it is a juridical entity, the petition will be dismissed.
After the amendment or showing referred to shall have been made, the writ prayed
for will issue, without costs.

Moran C.J., and Bengzon, J.,
concur.

Reyes, J., I concur, except as to the requirement that petitioner amend
its petition. Under the Rules, objection to the personality of petitioner is
deemed waived if not pleaded.

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CONCURRING

OZAETA, J.:

I concur in granting the petition for prohibition.

I do not deem it necessary to pass upon the disputed propriety
and legality of the acceptance by the President of Commissioner Enage’s
application for retirement under the circumstances alleged in the petition,
specially because said commissioner is not a party in this case.

Assuming the existence of a vacancy, I agree with the majority
that the designation of the respondent Solicitor General as acting member of the
Commission on Elections is contrary to the Constitution. My views are briefly as
follows:

The Commission on Elections is an independent office
created by the Constitution (section 1, Article X). It is not appended to either
the Executive, the Legislative, or the Judicial Department of the
Government.

The Constitution provides that the Chairman and the two other
members shall be appointed by the President with the consent of the Commission
on Appointments for a term of nine years and may not be rsappointed. They may be
removed from office only by impeachment as provided in the Constitution. Their
salaries shall neither be increased nor be diminished during their term of
office.

The purpose of the Constitution in providing a fixed and secure
tenure of office for the members of the Commission with a fixed salary which may
neither be increased nor be diminished during their term of office, is to insure
and preserve the independence of that body in the impartial performance of its
important arid delicate task of enforcing and administering all laws relative to
the conduct of elections.^[1] That purpose
would be defeated if, instead of appointing, an incumbent for a fixed term
removable only by impeachment, the President should fill the position by
designation, which he can change at will. Such method would also destroy the
schedule of rotation provided by the Constitution whereby a new member of the
Commission is appointed every three years.

The President’s letter of designation, dated November 9, 1949,
and addressed to the respondent, reads in part as follows:

“In the interest of the public service and pursuant to the
provisions of Commonwealth Act No. 588, you are hereby designated Acting Member
of the Commission on Elections, in addition to your duties as Solicitor General,
pending the appointment of a permanent member to fill the vacancy caused by the
retirement of Commissioner Francisco Enage, effective at the beginning of office
hours today.”

Commonwealth Act No. 588 is entitled “An Act authorizing the
President of the Philippines to make temporary appointments in certain public
offices.” It was approved on August 12, 1940, i. e., before the approval of the
amendment to the Constitution whereby the Commission on Elections was created.
Said Act expressly and only refers to “an officer in the Executive
Department of the Government,” whose position the President is authorized
to fill temporarily by designating “another officer already in the service or
any other competent person.” Since a member of the Commission on Elections is
not an officer in the Executive Department of the Government but is as
independent of the executive as a judicial officer is in the performance of his
duties, it is to me clear that the Act cited is not applicable. It cannot be and
has never been applied to a judicial officer.

Respondent’s designation, being repugnant to the Constitution,
is null and void ab initio.

It is idle to discuss and decide in this case whether or not
the President may designate an acting member of the Commission on Elections when
a regular member thereof is unable to perform the duties of his office owing to
illness, absence, or other cause. We could decide that question only when such a
case should arise.

Upon the propriety of prohibition as a remedy, I concur in the
opinion of Mr. Justice Padilla. However, I do not deem it necessary to require
the petitioner to amend the petition as a matter of formality, specially in the
absence of any question raised on that point by the adverse party.

Paras, and Tuason, JJ., concur.

---

[1] Formerly, the enforcement and administration of
those laws were entrusted to the Executive Department.

---

CONCURRING AND DISSENTING

MONTEMAYOR, J.:

It is unnecessary for me to state the facts and issues involved
in this case for the reason that they are well stated in the learned majority
opinion penned by Mr. Justice Padilla.

I concur in the majority opinion except where it denies to the
Chief Executive the right to temporarily fill a permanent vacancy in the
Commission on Elections by designation. As regards the retirement of
Commissioner Enage resulting in a permanent vacancy in the Commission on
Elections, it is to be understood of course that the ruling of this Court on
that point is valid only in the present case in the sense that it may not bind
Commissioner Enage who took no part in these proceedings.

As a rule and unless qualified by constitutional or statutory
provision the power to appoint includes the lesser power to designate. There are
times and occasions when a temporary designation, particularly in the Commission
on Elections is necessary and imperative. There are only three Commissioners in
the Commission. Should one of the three Commissioners be disqualified, or be on
leave or be sick and unable to perform his duties, and should there be a
deadlock in voting between the two remaining Commissioners, the President must
necessarily designate another to act temporarily as Commissioner so as not to
interrupt or hamper the functions of the Commission. He cannot make a permanent
appointment for the reason that there is no vacancy. In case two of the
Commissioners are absent on leave or sick or disqualified, designation of one or
two persons to temporarily act in the Commission would still be more necessary
and imperative. Fortunately, the majority opinion concedes, though it seems,
reluctantly and rather indirectly that in such cases the Chief Executive may
make designations temporarily. With this concession, I deem it unnecessary to
elaborate on this point.

Now, let us go to the main issue of the legality or illegality
of temporarily filling a permanent vacancy with a designation as what happened
in the present case. The majority holds that in case of a permanent vacancy, the
legal and proper thing to do is for the President to make a permanent or ad
interim appointment for the reason that to designate one to act temporarily
in the Commission would impair the independence of that body, provided for and
guaranteed by the Constitution. I fail to see any difference or distinction
between a designation to temporarily fill a vacancy and an ad interim
appointment to permanently fill the same vacancy in the Commission on Elections
in relation to and in their effect on the independence of that entity. The
majority opinion fails to show such alleged distinction or difference or
otherwise enlighten us on the point. Both designation and ad interim
appointment in my opinion if conferred on the right and proper person do not and
will not affect the Commission’s independence. I suppose the majority starts
from the theory that a person designated temporarily to the Commission cannot
act independently because his tenure being temporary, precarious and at the
pleasure of the President, he is, so to speak, always under the thumb of the
Chief Executive who may withdraw the designation, and put him out the moment he
(the one designated) acted against the interests of the President or of his
party. So to keep the designation and continue acting in the Commission, the one
designated sacrifices the independence of the Commission and his own
self-respect and does the President’s bidding.

The flaw in this theory, however, is that it assumes or
presupposes the appointing power to be so utterly lacking in mental honesty,
fair dealing and plain decency, and the person, designated equally devoid of
character, and independence of judgment, but cursed with a mistaken sense of
loyalty to the one designating him. I believe that we should not indulge in or
entertain such a presumption unless there be valid grounds for the same, based
on proof. But assuming for a moment all these evils to be possible, they may and
do equally apply to designations to be made by the President where there is no
vacancy but only disqualification, physical disability or absence of any of the
Commissioners, so that from the point of view of i the majority, in every case
of designation to the Commission, whether to temporarily fill a vacancy or in
case merely of disqualification, sickness or absence of any of the
Commissioners, the independence of that body is always menaced and impaired.

It seems that the main, if not the whole objection on the part
of the petitioner to the designation made in this particular case lies in the
fact that the person designated, the Solicitor General, had previously been
representing the Chief Executive in the impeachment proceedings before Congress
and in the emergency powers cases brought before this Court; that by reason
thereof, said Solicitor General’s loyalty to the Chief Executive has so
crystallized and definitely settled that in acting now in the Commission, he
would consciously or unconsciously be guided and his decisions colored by such
loyalty, especially since the present Chief Executive as a candidate in the last
presidential election is interested in the acts of the Commission in regard to
said elections. But as the majority opinion itself states, there is not much, if
any, that the Commission on Elections can do to favor or to prejudice a
presidential candidate. According to the majority, the Commission may not
suspend the election in any province as two of its Commissioners had voted in a
resolution approved by them. Neither may the Commission annul the elections in
any province or district as the said two Commissioners had supposedly threatened
to do if the elections in some provinces were not postponed. There would
therefore be not much, if any, that a person designated by the Chief Executive
under these circumstances could do even if want only disposed.

Had the President in this case designated someone else say, a
Judge of the Court of First Instance or a Justice of the Court of Appeals or any
practising attorney, it is to be doubted if said designation would have been
questioned.

Going back to the alleged impairment of the independence of the
Commission by a designation to temporarily fill a permanent vacancy, the same
danger so much predicted and feared by the majority and the petitioner would
equally be present in case of a permanent, though ad interim
appointment. To me, it would even be worse because the hazard through which a
person with an ad interim appointment has to go is greater. In the case
of a designation as was done in the present case, supposing that the Chief
Executive held the withdrawal of the designation as a sword of Damocles over the
head of the Solicitor General so that the moment the latter displeased the
President with his actuations in the Commission the designation will instantly
be withdrawn, in such a case Solicitor General Bautista would not suffer or lose
anything. Perhaps, after all, the loss of the designation to the Commission was
a welcome relief to him because the designation meant additional work and even
embarrassment to him as is happening in his case. He did not lose his post as
Solicitor General and he would be but glad to return to it. But not so with one
favored with an ad interim appointment. Such a person if an officer of
the government loses and forfeits his official post the moment he accepts the
ad interim appointment. If he is a practising attorney he has to
dispose of his pending cases, and dissolve his connections with his law firm, if
any, as well as give up all control or management of any private enterprise
which may be affected by the functions of his office, including financial
interest in any contract with the Government. (Art. X, section 3, Philippine
Constitution.) We must bear in mind that in these examples we are assuming or
presupposing an appointing power who is evil-minded, lacking in mental honesty
and disposed to go to any extremes to achieve his desire. Let us also remember
that we have here the party system where the Chief Executive ordinarily is a
member and is the head of the majority party in power. If the person with an
ad interim appointment fails to act in the Commission in accordance
with the dictates and desires of the President, his confirmation may easily be
blocked in the Commission on Appointments. The Commission on Appointments in
order to accommodate the Chief Executive may not only fail to confirm the
appointment but may even reject it for supposed lack of qualifications in
training, education and experience or even of character qualification. The
appointee is naturally embarrassed if not disgraced. He loses the appointment;
he had already lost his official post that he vacated when he accepted the
ad interim appointment, and if he is a private practitioner, he had
lost at least temporarily his clients in his law practice. So, I say that if a
person designated temporarily to fill a permanent vacancy and one given an
ad interim appointment to fill a similar vacancy were both persons with
a distorted sense of loyalty to the appointing power, and lacking in character
and dignity and a sense of duty, were similarly situated, and under the same
pressure and threat from the appointing power, there might be more temptations
in the case of the person with an ad interim appointment to abuse his
power and discretion in the Commission to favor the Chief Executive, for the
reason that the danger and alternative consequences are far greater and more
serious.

Considering the circumstances surrounding the designation of
Solicitor General Bautista to act in the Commission in a temporary capacity the
majority opinion has well said that we may not inquire into the motives
prompting said designation. Taking a casual, view of the case, it is possible
that a happier designation, of someone else could have been made, not in the
sense that Solicitor General Bautista is not qualified by education, training
and experience or by character to act in the Commission, for he appears to be
fully qualified for this post, but because any other person who has had no
association or connection with the President if designated would have aroused no
speculation or suspicion or fear about his actuations in the Commission. But in
favor of the action of the President, it is said that he believed that he was
merely following a precedent set by the late President Quezon who, in 1941,
designated the then Solicitor General Roman Ozaeta to act temporarily in the
Commission on Elections. Said designation is published in the Official Gazette.
Justice Ozaeta, however, says that he does not recall any such designation in
his favor. There is no reason whatsoever to doubt even for a moment Justice
Ozaeta’s word. It is highly possible that the designation though officially made
may not have been communicated to him and he never acted in the Commission,
perhaps because subsequently there was no longer any necessity or occasion for
him to do so. Hence his lack of knowledge or inability at recollection. Be that
as it may, the President was informed of this precedent and according to
Solicitor General Bautista, he was designated merely, if not exclusively on the
strength of such precedent.

One may ask why the President could not and did not make a
permanent appointment to fill the vacancy in the Commission. We are not in a
position to give the right answer. Any answer that one may give would at best be
confined to the realm of speculation. But it is not hard to imagine that to
permanently fill a vacancy in a constitutional body like the Commission on
Elections vested with important delicate functions, with remuneration to the
members thereof relatively high, and naturally requiring high and special
qualifications of character, training and experience, the Chief Executive may
need time to select the right person. To be sure that his appointment will be
confirmed, he might find it necessary or advisable to consult the members of the
Commission on Appointments or the leaders thereof. The person he has in mind may
not be immediately available. He may be absent from the capital or if he is
present and is consulted he may need time to decide whether to accept or decline
the appointment tendered or offered. Even if he has, decided to accept the offer
he may need time to wind up his private affairs and dispose of his pending legal
cases, if actively practising the legal profession. On the other hand, the need
for someone to act in the Commission to fill the vacancy even temporarily, was
pressing and imperative. There were only two remaining Commissioners and one of
them had disqualified himself on some matters pending hearing and action before
the Commission. And the Nacionalista Party was threatening to ask for his
absolute disqualification in all cases regarding the presidential elections.
Furthermore, at least according to the press, there was an alleged difference of
opinion about some phases of the presidential elections between these two
remaining Commissioners with the possibility, if not probability, of a deadlock
or tie when it came to a vote. The President may have deemed it necessary to act
quickly. All these things may, or might have prompted the Chief Executive to
designate Solicitor General Bautista to act temporarily in the Commission. Of
course, he could have designated someone else, not perhaps better qualified but
less subject to objection and speculation. But that was the problem, the
privilege and the right of the Chief Executive. I am, as it were, merely
thinking out loud.

But I believe and hold that the Chief Executive has the
inherent right to designate one to act temporarily in an office to fill a
vacancy even in the Commission on Elections. That the power may be abused is no
argument against its existence.

Section 9 of Republic Act No. 296 provides that in case of
vacancy in the Supreme Court or in the event that any of the Justices is absent,
disabled or incapacitated to perform his duties, the requisite number of
Justices necessary to constitute a quorum or to render a judgment in any given
case, is not present, the President of the Philippines upon recommendation of
the Chief Justice, may designate such number of Justices of the Court of Appeals
or District. Judges as may be necessary to sit temporarily as Justices of the
Supreme Court. Section 27 of the same Act makes a similar provision for the
Court of Appeals. The majority claims that were it not for those legal
provisions, the President would have no power to make designations for the two
Courts. I disagree. I believe that the President has the inherent power to make
temporary designations in thetwo courts, power necessarily included in his power
to appoint the Justices in said courts. Sections 9 and 27 of Republic Act No.
296 merely limit such power. Without such legal provisions, the President may
designate anyone legally qualified, even from outside the Judiciary, in order
not to hamper or paralyze the functions of these two tribunals.

But there is another aspect of these two legal provisions.
Considering them, the Legislature has evidently seen no objection to or anomaly
in the President filling temporarily a permanent vacancy in these two courts by
a mere designation. The Legislature does not see any danger to the independence
of the Supreme Court or the Court of Appeals by the President making a
designation to temporarily fill a vacancy occurring in said Courts, a danger so
touch emphasized and feared by the majority. I do not see the danger myself.

In conclusion I hold that the President has the right to
designate one to act temporarily to fill a vacancy where he has the right to
make the permanent appointment, and that in the present case the Chief Executive
has the right to designate the Solicitor General to act temporarily to fill a
vacancy in the Commission on Elections especially under circumstances urgently
calling for the services of one to act in said Commission. Whether the
designation was a happy one, advisable or expedient, is beside the point. As
long as the President’s designation is valid and constitutional, we may not pass
upon its wisdom or propriety.

If I have dwelt a little extensively in this opinion on the
power of designation, it is because I regard the present case and its
implications very important and of far-reaching consequences. This Court is
defining and limiting the power of appointment of the Chief Executive, not only
for the present incumbent but for administrations to come, and I feel it my duty
to explain my views on the point.

TORRES, J., concurring in the dissenting opinion of Mr. Justice Montemayor:

In addition to the views expressed in his dissenting opinion by
Mr. Justice Montemayor in which I fully concur, I deem it proper, however, to
say a few words about a theory expounded by counsel of petitioner during the
hearing of this case before this Court.

Elaborating on the meaning of the word “independent” found at
the beginning of section 1 of Article X of the Constitution, as amended, it has
been argued that such word means that the Commission on Elections created
thereby is an independent body and, as such, its organization and functions
should not be interfered with by the Executive.

Section 1 of Article X of the Constitution says that “There
shall be an independent Commission on Elections composed of a Chairman and two
other members to be appointed by the President with the consent of the
Commission on Appointments, * * *.” Does the word “independent” used in the
above-quoted constitutional provision mean that the Commission on Elections is a
body completely separate, not dependent, not subject to control by other
governmental entities, self-governing? My answer is, yes, and no. The Commission
on Elections is independent as regards the exercise of its functions; except as
provided in section 2 of Article X of the Constitution it can not be interfered
with by any other governmental instrumentality, because it was created as a
special body charged with the duty of conducting the elections, and as stated by
this Court in Sumulong vs. Commission on Elections, 40 Off. Gaz., 3663, the
power to review the acts of said Commission should, as a general proposition, be
used sparingly but firmly in appropriate cases.

Aside from what I have just stated, I hold that the Commission
on Elections is not absolutely independent. Under the scheme of our Government
as provided in the Constitution, which was framed with the United States
Constitution as the model, it consists of three powers or branches known as the
legislative, the executive and the judicial branch. This does not mean that each
branch or power is completely independent of each other; on the contrary, they
are coordinated powers or branches, each linked or connected with the other in
such a way that the idea frequently expounded by some that, for instance, the
judicial branch is independent from the other two branches, finds no support
when we have to deal with practical cases wherein the question of separation of
powers is involved.

In effect, in my humble opinion, it is unthinkable to maintain
that one of those three powers or branches of the Government is independent of
the others, if we take into consideration, that the Executive has to depend on
or deal with the legislative branch whenever it wants legislation or
appropriation for funds approved by the latter branch in order to carry out its
governmental program and maintain the complicated machinery of the Government.
It has to submit for confirmation of the Commission nominations or appointments
made by it; and it has to deal with the legislative branch in order to assure
the success of his administration.

On the other hand, the legislative branch, whose functions
consist mainly of passing legislative measures, sees to it that the executive
branch puts into effect the legislative program by carrying into execution the
measures approved by it during the legislative session. Finally, in the judicial
branch, the judicial officers, high and low, are appointed by the President,
with the confirmation of the corresponding body of the legislative branch, and,
what is more important, the funds which are necessary for the judiciary to
function are recommended by the executive in the budget prepared by it and
approved by the legislature. In the light of what has just been briefly
described, could anyone still maintain that the three branches of the Government
are so separate and independent of each other that not a single branch has
anything to do with the other two?

It is for this reason that the late Mr. Justice Holmes of the
Supreme Court of the United States, in its now famous dissenting opinion in the
cases of Springer vs. Government of the Philippine Islands and Agoncillo vs.
Government of the Philippine Islands, 72 Law. ed., U.S., 277, pp. 852-853,
said:

“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.
Property must not be taken without compensation, but with the help of a phrase
(the police power) some property may be taken or destroyed for public use
without paying for it, if you do not take too much. 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

“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 brariches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution
requires.”

In the light of the above, I can not, therefore, conceive a
governmental instrumentality, such as the Commission on Elections established by
the Constitution, completely disassociated, disconnected from the other
governmental entities created by the Constitution or the law.

The Government is a machinery composed of many parts, each
intended to perform a certain function within the whole of the same, so as to
accomplish the purpose for which it has been built. The fact that a specific
place is found in the Constitution for the Commission on Elections does not
necessarily mean that such body shall work and function in entire disregard of
the other governmental entities.

The Commission on Elections was organized when the Executive
filled the positions created by section 1 of Article X of the Constitution, and
is now carrying out its functions by means of yearly appropriations included in
the general budget of the Government passed by the Congress and approved by the
Executive. This means that the Commission on Elections did not come into being
spontaneously but through positive acts of the Executive and the Congress.