YUSOPH C. TAMANO, PETITIONER, VS. RAUL S. MANGLAPUS AND FRANKLIN S. DRILON, RESPONDENTS.

Tamano versus Manglapus

The Case

This is a petition for mandamus filed by Yusoph Tamano against Foreign Affairs Secretary Raul Manglapus and Executive Secretary Franklin Drilon. Tamano asks the Supreme Court to compel the respondents to reinstate him as Foreign Service Officer II and to pay all back salaries and benefits accruing to him from March 1, 1987 to date. The case matters because it draws the line between the career service and the non-career service in the foreign service, and because it restates the settled rule that mandamus will not lie to control the exercise of discretion.

Procedural History

This was an original action for mandamus filed directly in the Supreme Court on November 26, 1991. There were no prior judicial proceedings below. Before filing suit, Tamano sought reconsideration of the President's revocation of his appointment, which was denied. He later filed a request for rectification and reconsideration, asking that he be granted instead an appointment as Foreign Service Officer IV, the beginning level, but that request was denied by the Board of Foreign Service Administration. He then came to the Supreme Court by petition for mandamus.

Facts

On September 10, 1986, then President Corazon Aquino appointed Yusoph Tamano as Foreign Service Officer II and Consul, with a salary of 47,856 pesos per annum. Upon receipt of the appointment, Tamano took his oath of office before Deputy Minister of Foreign Affairs Mamintal Tamano. A month later he completed the Consular Officer Course conducted by the Foreign Service Institute, and he began receiving his salary as Foreign Service Officer II on September 12, 1986. An identification card certifying his employment in the Ministry of Foreign Affairs as Foreign Service Officer was issued to him on November 24, 1986. He thereafter caused calling cards to be printed describing himself variously as Chief of the Islamic Division, as Consul and President of the Filipino-Muslim Foreign Service Personnel Association, as Second Secretary of the Philippine Embassy in Cairo, and as Director of the Office of Middle East and African States.

On or about March 1, 1987, before Tamano's appointment was submitted to the Commission on Appointments for confirmation, President Aquino, in a communication addressed to Secretary of Foreign Affairs Salvador Laurel, revoked Tamano's appointment effective ab initio owing to the absence of appropriate items. Tamano sought reconsideration, but to no avail.

On November 21, 1988, Tamano filed a request for rectification and reconsideration of his revoked appointment by granting him instead an appointment as Foreign Service Officer IV, the beginning level, which he alleged was given to two other appointees similarly situated. That request was denied by the Board of Foreign Service Administration. Later, Ambassador Rosalinda Tirona recommended in a memorandum to the new Foreign Affairs Secretary, Raul Manglapus, that the revocation be lifted and that Tamano be appointed instead to the beginning level of Foreign Service Officer IV. After a review of the case and others similarly situated, Secretary Manglapus concurred in the view that the appointees appeared to have all the qualifications and none of the disqualifications, and recommended that the revocation of their appointments be lifted and that the President's decision to appoint them be given due course. No reinstatement followed, and Tamano filed this suit for mandamus on November 26, 1991.

Issues

• Whether or not the petitioner is entitled to the writ of mandamus he prays for.
• Whether or not the petitioner has a clear legal right to be reinstated as Foreign Service Officer II.

Applicable Provisions

Title III, Part B, Section 1 of Republic Act 708, as amended, provides:

Section 1 Career Service Corps - (a) There shall be a career service corps for the Department and the Foreign Service to be composed of Foreign Affairs Officers appointed by the President upon the recommendation of the Secretary and with the consent of the Commission on Appointments. (b) No person may be a Foreign Affairs Officer unless he is a Filipino citizen and is at least twenty-five years old at the time of his appointment. (c) No person shall be eligible for appointment as a Foreign Affairs Officer unless he has passed such competitive examinations as the Board of Foreign Service Examiners may prescribe to determine his fitness and aptitude for the work of the service and has demonstrated his loyalty to the Government of the Republic of the Philippines and his attachment to the principles of the Constitution.

This provision supplies the indispensable requirements for membership in the career service corps, namely appointment by the President upon the recommendation of the Secretary and with the consent of the Commission on Appointments, and the passing of the competitive foreign service examination.

Section 6 of Presidential Decree 807 provides:

Section 6. The non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.

This provision defines the non-career service, into which the Court places an appointee who entered without the examination and without confirmation, and whose tenure is subject to the pleasure of the appointing authority.

Ruling

On the first issue, the Court held that the petitioner is not entitled to the writ of mandamus. Mandamus is the proper remedy only where there is neglect on the part of a tribunal in the performance of an act which the law specifically enjoins as a duty, or an unlawful exclusion of a party from the use and enjoyment of a right to which he is entitled. Only specific legal rights that are clear and certain may be enforced; if the legal rights of the petitioner are not well-defined, clear, and certain, the petition must be dismissed. The Court further held that the writ of mandamus is not available to control discretion. It may issue to compel the exercise of discretion but not to control it, and it can require action only, not specific action, where the act sought to be performed involves the exercise of discretion. The act sought here, the lifting of the President's revocation of the appointment and the petitioner's reinstatement, is not ministerial but involves a high degree of discretion, which the Court may not interfere with under the separation of powers.

On the second issue, the Court held that the petitioner has no clear legal right to be reinstated as Foreign Service Officer II. The record showed that he was appointed without having taken, and therefore without having passed, the foreign service examination, and that his appointment was never confirmed by the Commission on Appointments. These are indispensable requirements for a Foreign Service Officer to be embraced in the career service corps. He therefore belonged to the non-career service, composed of those appointed not on the basis of the usual test of merit and fitness but subject to the appointing power's pleasure. As a political appointee or non-career officer, he served at the pleasure of the President. He has no clear right to the office to which he seeks reinstatement, nor does the appointing authority have a clear duty to appoint or reinstate him thereto.

Doctrine

First, membership in the career service corps of the foreign service requires appointment by the President upon the recommendation of the Secretary and with the consent of the Commission on Appointments, and the passing of the competitive foreign service examination prescribed by the Board of Foreign Service Examiners. Absent the examination and absent confirmation, the appointee belongs to the non-career service and serves at the pleasure of the appointing authority.

Second, mandamus lies only to enforce a clear and certain legal right and to compel the performance of a ministerial duty. It may issue to compel the exercise of discretion but never to control it, and where the act sought involves a high degree of discretion, the courts may not interfere.

Disposition

The petition was denied for lack of merit, with costs against the petitioner.

Remember This

Memorize this line: as a non-career officer serving at the pleasure of the President, the petitioner had no clear right to the office and the appointing authority had no clear duty to reinstate him, so mandamus would not lie. Examiners use this case to test the career and non-career distinction in the foreign service under Republic Act 708 and Presidential Decree 807, and the rule that mandamus cannot control discretion.