ISABELO J. ASTRAQUILLO, PETITIONER, VS. RAUL MANGLAPUS, THE BOARD OF FOREIGN SERVICE ADMINISTRATION (MANUEL T. YAN, JOSE D. INGLES, ROSALINDA V. TIRONA, ERNESTO GARRIDO, FELIPE …

As the caption indicates, this decision deals
with five cases.  The cases have
been consolidated and jointly considered because they all turn upon a common
legal issue, i.e., the validity of the termination, by authority of the
President of the Philippines,
of the petitioners’ appointments as “political” or
“non-career” members of the
country’s Foreign Service.  Stated
otherwise, the common issue is whether or not their service as Philippine
diplomats was under the circumstances, at the pleasure of the president,
terminable without cause or need of investigation.

G.R. Nos.
88183 and 88781:  Isabelo
Astraquillo

Astraquillo was appointed by the
President of the Philippines
on July 22, 1986 as
Ambassador Extraordinary and Plenipotentiary and Chief of Mission (II) to the
United Arab Emirates (UAE).^[1]
After he had occupied the post for two years or so, a confidential memorandum
was filed with the Home Office by Atty. Roy Seneres,
the Philippine Labor Attache to the United
Arab Emirates, accusing Astraquillo,
his wife and cousin-in-law of improper interference with his (Seneres’) functions.^[2]
On instructions of the Board of Foreign Service
Administration (BFSA) the matter was investigated by Ambassador Pacifico Castro from March 28 to 31, 1989.^[3] Thereafter, by Memorandum dated April
11, 1989, the
Secretary of Foreign Affairs recommended to the President the termination of Astraquillo’s services as ambassador.  The recommendation was “APPROVED by
authority of the President.”^[4] Astraquillo was
then notified (on April 18, 1989) of the termination of his services
effective immediately,^[5] and (on May 8, 1989) of the designation of Counsellor
Donato Felicio as Charges D’affaires effective May 17, 1989.^[6]

Astraquillo sought and obtained from
the Secretary of Foreign Affairs an extension of his services up to May 31, 1989.^[7]
But on the same day that the telex message extending his services was transmitted,
May 12, 1989, Astraquillo filed the petition for certiorari at
bar, challenging his removal from his post and the designation of Felicio as Charges D’Affaires.  This was docketed as G.R. No. 88183.  After
Ambassador Fortunato D. Oblena
was appointed to replace him as the country’s Ambassador Extraordinary and
Plenipotentiary to the UAR, Astraquillo filed with
this Court a petition for quo warranto contesting the appointment.  This second case was docketed as G.R. No.
88781.

His basic thesis is that the Foreign Affairs Secretary had no
power qua department head, and without prior authorization of the President, to terminate his services, he
being a presidential appointee; and under the Foreign Service Code of 1983, his
removal could be predicated only upon good cause duly established at a hearing
of which he was entitled to notice and an opportunity to defend.  Corollarily, the
designation of a replacement for him, either in a temporary or permanent
capacity, was also null and void.

G.R. No.
88467: Alunan C. Glang

Alunan Glang
was appointed by President Aquino on September 11, 1986 as Ambassador
Extraordinary and Plenipotentiary and Chief of Mission (Class I) to Kuwait,^[8]
and assumed his post on January 11,
1987.^[9]

Two years afterwards, or on May 27, 1989, he received a telex message from the
Secretary of Foreign Affairs informing him that his services as ambassador and
chief of mission to Kuwait
had been terminated and directing him to vacate his post “on or before June 30, 1989.”^[10]
The message further advised that the termination of his services was
“explicit in a Memorandum dated 18
May 1989” a copy of which would be furnished him by telefax.  The
memorandum referred to was one signed by Secretary Raul Manglapus
recommending the “recall and subsequent termination of the services of
Ambassador Alunan C. Glang
as Ambassador to the State of Kuwait **,” which was approved by Executive
Secretary Catalino Macaraig,
Jr. “BY AUTHORITY OF THE PRESIDENT.”^[11]

On May 30, 1989 Glang sent
communications separately addressed to the Office of the President and the
Secretary of Foreign Affairs stating that he considered his separation from the
service as “illegal and violative of R.A. No.
704, known as the Foreign Service Act of 1952,” as amended, he being
entitled to security of tenure and removable only for cause and not at the
pleasure of the President.^[12]
The Foreign Secretary’s reply (sent by telex on June 2, 1989) was prompt and simple:  the notice of termination of Glang’s services “dated 26 May 1989, stands;” he should “accept the
President’s decision” and seek redress “only through the proper
courts of law” if he felt he had been “unlawfully treated.”^[13]

Glang thereupon filed the petition for certiorari and prohibition at bar.  For relief, he relies upon substantially the
same arguments as those advanced by Astraquillo, supra.^[14]

G.R. Nos.
88672 and 88916: Alejandro Melchor, Jr.

Alejandro Melchor, Jr. was also
appointed by President Aquino Ambassador
Extraordinary and Plenipotentiary on June
27, 1986.^[15]
On July 3, 1986, Vice-President
Salvador H. Laurel, then Foreign
Affairs Minister, assigned him to Moscow, U.S.S.R.^[16] This post Melchor
assumed on September 4, 1986,^[17] after which he received another appointment
from the President on October 15, 1986 as Chief of Mission, Class 1.^[18]

On July 25, 1988,
seven (7) officers and employees of the Philippine Embassy in Moscow^[19]
filed a complaint with the Department of Foreign Affairs against Melchor and two others^[20]
for “acts inimical to the foreign Service, in violation of the Foreign Service Code (and) blatant disregard of COA
rules and regulations and the Civil Service Code.”^[21] The complaint was investigated by Ambassador
Ernesto Garrido, Director General for Financial
Management Services of the Foreign Affairs Department, by direction of the Secretary.^[22] Garrido’s report
to the Board of Foreign Service Administration (BSFA) of the Foreign Affairs
Department dealt with ten of the fourteen (14) charges but failed to resolve
four (4) others.^[23] Said Board, after deliberating on the
report, directed the filing of a charge sheet against Melchor
relative to the four (4) unresolved accusations as to which the latter had
filed no written answer;^[24] and accordingly, the Director General for
Personnel and Administrative Services formally charged Melchor,
under date of January 2, 1989, with the following offenses, to wit:^[25]

1) establishment of a private restaurant
on the third floor of the Philippine Embassy Building without prior notice and
approval of the Home Office;

2) issuance of visas to persons not
qualified to travel to the Philippines;

3) appointment and accreditation of Hernani Jover and Donato de Guzman as Counsellors
contrary to existing laws; and

4) leaving his post without permission
from the Home Office from October to December 1987 and January 22-26, 1988.

By letter dated January 10, 1989, Melchor
told the Foreign Affairs Secretary there was “no basis for me to reply
under oath” (to the charges, as required) as “said complaint has not
been subscribed and sworn to according to the provisions of P.D. 807,”
drawing attention, however, to his reply “to the complaint on 22 September
1988 Dispatch No. AM-193-88, Subject: 
Comments to complaint.”^[26]
He also wrote to President Aquino on the same date
regarding the “unfounded charges” against him and requesting that the
matter be resolved before his return to his post.^[27]
He wrote another letter to President Aquino, dated January 19, 1989, this time under
oath, inter alia submitting his answers to the four
unresolved charges against him since, according to him, “it is only the
President that can decide my case.”^[28]
Melchor’s letter was referred to the Secretary^[29]
who, acting thereon, issued Memorandum No. 4230 declaring his approval of the
BFSA recommendation that Melchor:  (a) be allowed to forthwith return to his
Moscow post to prepare for the President’s state visit, (b) be thereafter
transferred to another post, and (c) be reprimanded on account of the four
charges against him.^[30]

The affair was, however, far from ended.  On February
10, 1989, Melchor advised the Secretary
in writing that he would indeed return to Moscow
but protested the reprimand administered to him and his announced transfer to
another post after the state visit,
claiming that as a “presidential appointee,” he was beyond the
disciplinary authority of the BFSA, and that, furthermore, he had been denied
due process.^[31] On the same day he directed an
“APPEAL” to the President praying that she “nullify, after
review by an impartial body ** the illegal action of Sec. Manglapus
and the Board and return ** (him to his) post in Moscow without the stigma of a reprimand **.”^[32]

It appears that the BFSA re-examined the evidence against Melchor and came to the conclusion that all charges against
him should be dropped as there was “no basis” therefor
and consequently, his appeal had been rendered moot
and academic.^[33]  This was communicated to the Foreign Affairs
Secretary on June 9, 1989
and thence to the Office of the President, with the observation that Melchor’s appeal had indeed become moot and academic.  On the basis thereof, Executive Secretary Macaraig “terminated” the administrative case
against Melchor, by Order dated June 9, 1989.^[34]

It appears, however, that about a week earlier, or on May 29,
1989, the Secretary of Foreign Affairs had submitted a Memorandum to the
President recommending the termination of the services of Melchor
— described as “a political (non-career) Ambassador” — “as
Chief of Mission and as Ambassador” to the U.S.S.R, and that he
“should vacate his post by 30 June 1989.”^[35]
This was “APPROVED by authority of the President” on June 13, 1989 by Executive Secretary Macaraig.^[36]

On June 28, 1989
Melchor presented the petition at bar, grounded
mainly on the proposition that the termination of his services by Foreign
Affairs Secretary Manglapus after he had been
absolved of the charges against him, was unwarranted and illegal, and that the authority to so terminate his
services was “vested exclusively on the President herself **.”

Subsequently, Melchor filed a second
petition, docketed as G.R. No. 88916, seeking invalidation of the reassignment
or transfer of Ambassador Juan V. Saez from Amman,
Jordan to the Philippine
Embassy at Moscow.^[37]

Against this factual background, the petitioners submit the
following common contentions:^[38]

1) that the removals from the service were
not made by that President personally and directly;

2) that the removals did not state a cause
explicitly prescribed by the Foreign Service Act or the Civil Service Law;

3) that the removals were effected without
due process;

4) the petitioners were
appointed right after the so-called “EDSA Resolution,” and when
Vice-President Laurel was Minister of Foreign Affairs; and

5) all
were appointed Chief of Mission Class I (except Astraquillo,
who was named Class II Chief) and came into Foreign Service “through
lateral entry.”

The Civil Service Law, Presidential Decree No. 807, classifies
employment in Government into “career” and “non-career
service.” It identifies the peculiar characteristics of each category, and
enumerates the positions falling under each class.

Thus, Section 5 of said PD No. 807 states that the “career service” is characterized by:

“(1) entrance
based on merit and fitness, to be determined far as practicable by competitive
examinations, or based on highly technical qualifications;

(2) opportunity for advancement to higher
career positions; and

(3) security of tenure.”

Section 5 then enumerates the particular positions falling under
the Career Service, including, as will be noted, those in the Foreign
Service.  They are the following:^[39]

“(1) Open Career positions for appointment to which prior
qualification in an appropriate examination is required;

(2) Closed Career positions which are scientific or highly
technical in nature; these include the faculty and academic staff of state
colleges and universities and scientific and technical positions in scientific
or research institutions which shall establish and maintain their own merit
systems;

(3) Positions in the Career Executive Service, namely:
Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau
Director, Regional director, Assistant Regional Director, Chief of Department
Service and other officers of equivalent rank as may be identified by the
Career Executive Service Board, all of whom are appointed by the President;

(4) Career officers, other than those in the Career Executive
Service, who are appointed by the President, such as the Foreign Service Officers in
the Ministry of Foreign Affairs;

(5) Commissioned
officers and enlisted men of the Armed forces which shall maintain a separate
merit system;

(6) Personnel of
government-owned or controlled corporations, whether performing governmental or
proprietary functions, who do not fall under the non-career service; and

[(7)] Permanent laborers, whether skilled,
semi-skilled, or unskilled.”

The “Non-Career Service,” on the other hand, according
to Section 6 of the same PD 807, shall be characterized by:^[40]

“(1) entrance on
bases other than those of the usual test 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 pleasures, or which is limited to the duration
of a particular project for which purposes employment was made.”

And the officials and employees listed
under the Non-Career Service include:

“(1) Elective officials and their personal or confidential staff;

(2) Department Heads and other officials of Cabinet rank who hold
positions at the pleasure of the President and their personal or confidential
staff(s);

(3) Chairman and members of commissions and boards with fixed terms
of office and their personal or confidential staff;

(4) Contractual personnel or those whose employment in the
government is in accordance with a special contract to undertake a specific
work or job, requiring special or technical skills not available in the
employing agency, to be accomplished within a specific period, which in no case shall exceed one
year, and performs or accomplishes the specific work or job, under his own
responsibility with a minimum of direction and supervision from the hiring
agency; and

(5) Emergency and seasonal personnel.”

By these statutory standards, it seems plain that all three (3)
petitioners:  Isabelo
J. Astraquillo, Alunan C. Glang, and Alejandro Melchor,
Jr., pertained to the Non-Career Service. 
Their appointments to the Foreign Service were made on “bases other
than those of the usual test of merit
and fitness utilized for the career service;” their entrance was not
“based on merit and fitness ** determined ** by competitive examinations,
or based on highly technical qualifications.” This being so, their
“tenure ** (was) coterminous with that of the appointing authority or subject to his pleasures, **.”

It is worthy of note that among the officers categorized in the
Career Service by the Civil Service Law, PD No. 807, are “Career
officers, other than those in the Career Executive
Service, who are appointed by the President, such as the Foreign Service
Officers in the Ministry of Foreign Affairs.” Implicit in this reference
to “career officers” in the Ministry (now Department) of Foreign
Affairs is the acknowledgment of non–career
officers in that ministry (department).

The same distinction between career and non-career officers may
be derived by implication from the provisions of the Foreign Service Act of
1952, R.A. No. 708, as amended.

Part B, Title III of said Foreign Service Act deals with the
“Career Service Corps ** composed of Foreign Service Officers appointed by
the President upon the recommendation of the Secretary,” and declares that
“(n)o person shall be eligible for appointment (in such corps) unless he
has passed such competitive examinations as the Board of Foreign Service
examination 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.”^[41]
Those who thus qualify are “certified by the Secretary of Foreign Affairs as eligible for appointment as Foreign
Service Officer(s),” and it is exclusively from these officers so
certified that the President “shall appoint Foreign Service Officers **.”^[42]

Now, there are those, like the petitioners, who are appointed to
the Foreign Service, without having qualified in the manner just indicated and
consequently without having been certified by the Foreign Affairs Secretary as
eligible for appointment as Foreign Service Officers.^[43]
In view of the provisions of law just cited, they certainly do not and cannot
be deemed embraced in the Career Service Corps. 
They can only be regarded then as “non-career officers” or “political
appointees” who, as already pointed out, have a “tenure **
coterminous with that of the appointing authority or subject to his pleasures, **.”

Melchor discusses at length what he
feels to be the distinction between an ambassador and a chief of mission, and
argues that whatever might be said about his serving at the pleasure of the
President as ambassador, his appointment as chief of mission
had undoubtedly given him security of tenure as regards this latter
position.  He opines that the term, “chief of mission,” has
two meanings in the Foreign Service Act.

He states that Section 3 (i), Title I
of the Act defines the term as “a principal officer appointed by the
President of the Philippines, with the consent of the Commission on Appointments,
to be in charge of the embassy and legation and other diplomatic mission of the
Philippines or any other person assigned under the terms of this act to be
minister resident, charge d’affaires, commissioner or
diplomatic agent.”^[44]
On the other hand, he says that in other parts of the law (“Title II, Part
B, Section I, Part C, Section 1, and Title I, Part B, Section 1”)
“the use of the term Chief of Mission is in a different context for it
refers to the rank and class of the Foreign Service Officer in the enumeration
of categories of officers and employees of the foreign service as well as the
salary scale.^[45]

The discussion fails to demonstrate that, with regard to the
petitioners, a chief of mission is indeed significantly different from an
ambassador.  Petitioners Astraquillo, Glang and Melchor were appointed as ambassadors, respectively, in the
United Arab Emirates (UAE), Kuwait,
and Moscow.  Their appointments as chief of missions in
their respective posts simply meant that, as ambassadors extraordinary and
plenipotentiary, they were being placed in charge of the embassy or legation
therein.  Indeed, it seems evident that
even without being named chief of mission, the fact
that they were the highest ranking
official in their respective embassies would operate to place them in charge
thereof as a matter of course.

Obviously, however, this aspect of their appointments has no
effect on the essential character of their positions as pertaining to the
non-career service.  Consequently the
termination of their connection with the Foreign Service was not dependent on
proof of some legally recognized cause therefor,
after due notice and hearing — as in the case of career officers and employees
— but lay entirely within the will of the President, in the exercise of her
discretion, and her determination of the wisdom, necessity or convenience of
such a step in the national interest, actually a political decision.  In making this determination, the President
may take account of the recommendation of the Secretary of Foreign Affairs who,
as the President’s alter ego, heads and controls the Department of
Foreign Affairs and supervises and directs all officials and employees assigned
abroad.^[46]

The petitioners’ other argument that their separation from the
service is illegal because not effected by the President of the Philippines
who alone has the power to do so, is specious. 
The fact is that it was in truth the President who ordered their
removal.  The record shows that the
President approved the recommendation of the Secretary of Foreign Affairs for
the termination of their services.  This
is shown by the pertinent documents in which the Executive Secretary officially
certified that the recommendation for their separation from the service had
been “APPROVED by Authority of the President.”

Finally, since none of the petitioners has shown any right to be
returned to the office from which they had been separated by authority of the
President, none of them is entitled to the writ of quo warranto
to oust the officials who have since replaced them in their respective posts.

WHEREFORE, the petitions in the cases embraced in this
opinion, i.e., G.R. Nos. 88183, 88781, 88467, 88672, 888916, are all DENIED,
with costs against petitioners.

Melencio-Herrera, Gutierrez, Jr.,
Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea, and Regalado, JJ., concur.

Fernan, C.J., and Paras J., on leave.

---

* Hon. Jose D. Ingles, First
Undersecretary of Foreign Affairs, has been dropped from the case in view of his
retirement from the public service on September
15, 1989.

** Dr. Quisumbing
has also been dropped as party respondent, it appearing that she is not a
member of the Board of Foreign Service Administration (BFSA).

^[1]
Annex A, petitions in both cases

^[2]
Annex B

^[3]
Annexes C, D and E

^[4]
Rollo, pp.

^[5]
Annex F, petition in G.R. No. 88183

^[6]
Annex H, id.

^[7]
Annex J, id.

^[8]
Petition, Annex A

^[9]
Id., Annexes G and G-1

^[10]
Id., Annex I

^[11]
Supplemental Petition, Annex B

^[12]
Petition, Annexes J and J-1

^[13]
Id., Annex K

^[14]
Glang, Astraquillo, and Melchor are represented by the same counsel.

^[15]
Petition, G.R. No. 88672, Annex A

^[16]
Id., Annex D

^[17]
Id., Annex G

^[18]
Id., Annex B

^[19]
Namely: Rico Reyes, Emmanuel L. Saluta, Romulo D. Abu, Pantaleon B.
Lucas, Raul T. Tejada, Rolex d. Martinez and Carlos
S. Cruz

^[20]
Namely:  Counsellor
Corazon Belmonte and Mr. Alejandro Liwanag

^[21]
Id., Annex D-1

^[22]
The investigation was conducted from October
15 to 25, 1988.

^[23]
Ibidem

^[24]
SEE petition, Annexes Q, Q-1 and Q-2

^[25]
Id., Annex R.

^[26]
Id., Annex R-1

^[27]
Id., Annex S

^[28]
Id., Annex S-2

^[29]
Id., Annex S-3

^[30]
Id., Annex T

^[31]
Id., Annex U

^[32]
Id., Annex U-1.  The
appeal, entitled “In Re:  Administrative
Case against Ambassador Alejandro Melchor, Jr.,” was
docketed as O.P. No. 4013

^[33]
Id., Annex O

^[34]
Id., Annex N-1

^[35]
Id., Annex N

^[36]
Ibidem

^[37]
Comment, G.R. No. 88916, Annex I

^[38]
Rollo, G.R. Nos. 88183 & 88781, pp. 162,
166

^[39]
Italics supplied

^[40]
Italics supplied

^[41]
Sec. 1

^[42]
Sec. 3

^[43]
SEE Opinion No. 82, S. 1954 of the Department of Justice, cited in the Reply
dated Nov. 6, 1989, Rollo, pp. 258-260,
sustaining the proposition that “the President may also appoint Foreign
Affairs Officers without complying with the eligibility requirements under
Republic Act No. 708,” and pointing out that it is with regard to the
Foreign Affairs Officers composing the so-called “career service”
that “the law meticulously prescribes the manner and qualifications”
for their appointment as such, but no provision “limits or restricts the
power of the President to appoint ambassadors, public ministers and consuls in
accordance with the Constitution, even without complying with the “manner
and qualifications” for appointment of officers in the “career
service.”

^[44]
Rollo, G.R No. 88672, p. 263, reference being
made, too, to the definition of the term in Sec. 2, Part A of the Foreign
Service Regulations of the Philippines, 1962, to wit:  “Chiefs of Mission are diplomatic
officers in charge of embassies, legations and other diplomatic missions, and
are classified in accordance with their ranks as:

a) Ambassadors
Extraordinary and Plenipotentiary

b) Envoys
extraordinary and Ministers Plenipotentiary

c) Charge d’Affaires de missi

d) Charge d’Affaires ad interim”

^[45]
Id., p. 264, reference being made additionally to Executive Order No.
292, “Instituting the Administrative Code of 1987” (83 O.G. No. 38,
Sept. 21, 1987) which in Sec. 35, Chapter 9 of its Title I provides that the
“career service composed of Foreign Service Officers * * shall consist of
six classes * * including Chief of Mission; and Counsellors,”
and that a chief of mission “may be assigned as Ambassador Extraordinary
and Plenipotentiary, Head of Office in the Department or Deputy Chief of
Mission”

^[46]
Secs.
1, 6 and 7, RA 708, as amended