Bermudez vs. Torres

The requirement in Section 9, Chapter II, Title III, Book IV of the Revised Administrative Code of 1987 that provincial and city prosecutors and their assistants be appointed by the President “upon the recommendation of the Secretary” is merely directory and advisory, not mandatory; the President may disregard the Secretary’s recommendation in the exercise of the discretionary power to appoint.

Oscar Bermudez was the First Assistant Provincial Prosecutor of Tarlac and Officer-In-Charge of the Office of the Provincial Prosecutor. Conrado Quiaoit was appointed by then President Fidel V. Ramos to the post of Provincial Prosecutor. The governing statute, Section 9, Chapter II, Title III, Book IV of the Revised Administrative Code of 1987, provides that all provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary.

Oscar Bermudez was the First Assistant Provincial Prosecutor of Tarlac and Officer-In-Charge of the Office of the Provincial Prosecutor. A vacancy occurred in the Office of the Provincial Prosecutor of Tarlac. Bermudez was recommended by then Justice Secretary Teofisto Guingona, Jr. for the position of Provincial Prosecutor. Conrado Quiaoit appeared to have the support of then Representative Jose Yap of the Second Legislative District of Tarlac.

On 30 June 1997, President Fidel V. Ramos appointed Quiaoit to the post. Quiaoit received a certified xerox copy of his appointment and, on 21 July 1997, took his oath of office before Executive Judge Angel Parazo of the Regional Trial Court (Branch 65) of Tarlac, Tarlac. On 23 July 1997, Quiaoit assumed office and immediately informed the President, the Secretary of Justice, and the Civil Service Commission of that assumption. Bermudez refused to vacate the Office of Provincial Prosecutor, claiming that the original copy of Quiaoit’s appointment had not yet been released by the Secretary of Justice. Quiaoit nonetheless performed the functions and duties of the Office of Provincial Prosecutor by issuing office orders and memoranda, signing resolutions on preliminary investigations, and filing several informations before the courts. Quiaoit had since been regularly receiving the salary, RATA, and other emoluments of the office.

On 17 September 1997, Bermudez and Quiaoit were summoned to Manila by Justice Secretary Guingona. Following the conference, Bermudez was ordered to wind up his cases until 15 October 1997 and to turn over the contested office to Quiaoit the next day. In his First Indorsement dated 22 September 1997, for the Chief State Prosecutor, Assistant Chief State Prosecutor Nilo Mariano transmitted the original copy of Quiaoit’s appointment to Regional State Prosecutor Carlos de Leon, Region III, at San Fernando, Pampanga. In his Second Indorsement dated 02 October 1997, Regional State Prosecutor de Leon forwarded to Quiaoit the original copy of his appointment. On the basis of the transmittal letter, Quiaoit again assumed office on 16 October 1997. On even date, Bermudez was detailed at the Office of the Regional State Prosecutor, Region III, in San Fernando, Pampanga.

In the meantime, on 10 October 1997, Bermudez, together with Arturo Llobrera and Claudio Dayaon, the Second Assistant Provincial Prosecutor and the Fourth Assistant Provincial Prosecutor of Tarlac, respectively, filed with the Regional Trial Court of Tarlac a petition for prohibition and/or injunction and mandamus, with a prayer for the issuance of a writ of injunction/temporary restraining order, against respondents, challenging Quiaoit’s appointment primarily on the ground that it lacked the recommendation of the Secretary of Justice prescribed under the Revised Administrative Code of 1987.

• Mandatory Recommendation: Petitioners contended that an appointment of a provincial prosecutor mandatorily requires a prior recommendation of the Secretary of Justice endorsing the intended appointment.
• Analogy to San Juan vs. CSC: Petitioners cited by analogy San Juan vs. CSC, where the Court held that the DBM may appoint only from the list of qualified recommendees nominated by the Governor; if none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.
• Similarity of Executive Order No. 112: Petitioners called attention to Executive Order No. 112, Section 1, which provides that all budget officers of provinces, cities, and municipalities shall be appointed by the Minister of Budget and Management upon recommendation of the local chief executive concerned, and claimed that it can be likened to the provision of the Revised Administrative Code of 1987.

• Fatal Effect of No Recommendation: Whether the absence of a recommendation of the Secretary of Justice to the President can be held fatal to the appointment of respondent Conrado Quiaoit as Provincial Prosecutor of Tarlac.
• Nature of the Recommendation: Whether the phrase “upon recommendation of the Secretary” in Section 9, Chapter II, Title III, Book IV of the Revised Administrative Code of 1987 is mandatory or merely directory.

• Fatal Effect of No Recommendation: No. The absence of the Secretary of Justice’s recommendation did not invalidate Quiaoit’s appointment; the recommendation is merely advisory and not binding on the President.
• Nature of the Recommendation: Directory. The phrase “upon recommendation of the Secretary” is a mere advise, exhortation, or indorsement, essentially persuasive and not obligatory; the President may disregard it.

• Fatal Effect of No Recommendation: Legislative intent is primordial, and there is no hard-and-fast rule for ascertaining whether statutory language is mandatory or directory; the question is resolved case-to-case based on the nature, structure, and aim of the law. Generally, if no consequential rights or liabilities depend on the requirement, no injury results from ignoring it, and the legislative purpose can be accomplished in another manner producing substantially the same result, the statute is directory. Appointment to public office is the unequivocal act of designating or selecting, by one having authority, an individual to discharge the duties of an office or trust; it is complete once the last act required of the appointing authority has been complied with and accepted by the appointee. Appointment necessarily calls for discretion, and the power to appoint is discretionary, with the right of choice as its heart. When the Constitution or law clothes the President with power to appoint a subordinate officer, that conferment carries ample discretion. The President, as head of the Executive Department, has control over all executive departments, bureaus, and offices, including the authority to alter, modify, nullify, or set aside subordinate acts and substitute his judgment, and may even assume directly the functions of an executive department, bureau, or office. Thus, the President may interfere with or ignore recommendations of officials under him. On these premises, the absence of the Secretary of Justice’s recommendation did not invalidate Quiaoit’s appointment.
• Nature of the Recommendation: The phrase “upon recommendation of the Secretary” in Section 9, Chapter II, Title III, Book IV of the Revised Administrative Code of 1987 was interpreted as it is normally understood: a mere advise, exhortation, or indorsement, essentially persuasive in character and not binding or obligatory upon the President. The recommendation is advisory in nature. Because the President is the head of the Executive Department, he could disregard or do away with the action of departments, bureaus, or offices even in the exercise of discretionary authority without acting beyond the scope of his authority. The Court distinguished San Juan vs. CSC. Although Executive Order No. 112 has some similarity with the Revised Administrative Code provision, San Juan construed the law in light of the constitutional mandate on local autonomy. There, the DBM Secretary and the Governor had to share the questioned power because the President merely exercises general supervision over local government units and local officials. In the instant case, the recommendation of the Secretary of Justice and the appointment of the President are both acts of the Executive Department itself; there is no sharing of power, and the Secretary is deemed for all intents and purposes merely an extension of the President’s personality.

• Appointment to Public Office — An appointment is the unequivocal act of designating or selecting by one having authority of an individual to discharge and perform the duties and functions of an office or trust. It is deemed complete once the last act required of the appointing authority has been complied with and accepted by the appointee. The power to appoint is discretionary; the right of choice is the heart of the power. Applied: President Ramos’s appointment of Quiaoit was a valid exercise of discretionary appointing power.
• Mandatory vs. Directory Statutes — There is no hard-and-fast rule for ascertaining whether statutory language is mandatory or directory; each case depends on the specific law and attendant circumstances. Generally, if no consequential rights or liabilities depend on the requirement, no injury results from ignoring it, and the legislative purpose can be accomplished in another manner producing substantially the same result, the statute is directory. Applied: the phrase “upon recommendation of the Secretary” was held directory and advisory, not a mandatory condition.
• President’s Power of Control over the Executive Department — Control means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the performance of his duties, as well as to substitute the judgment of the latter; the President may assume directly the functions of an executive department, bureau, or office. Applied: the President could disregard or do away with the Secretary of Justice’s recommendation without exceeding his authority.
• Recommendation as Advisory — A statutory phrase requiring appointment “upon recommendation” of a subordinate official may be construed as a mere advise, exhortation, or indorsement, essentially persuasive and not binding or obligatory upon the appointing authority. Applied: the Secretary of Justice’s recommendation did not bind President Ramos, and its absence did not invalidate Quiaoit’s appointment.
• Local Autonomy Distinction — Where a statute involves local autonomy, the recommendation of a local chief executive may be mandatory because the President exercises only general supervision over local government units and the executive department must share power with the local government. In contrast, where both the recommendation and the appointment are acts of the Executive Department itself, there is no sharing of power and the recommendation is merely advisory. Applied: San Juan vs. CSC was distinguished, and the local autonomy rationale did not apply to the appointment of a provincial prosecutor.

• "It is the considered view of the Court, given the above disquisition, that the phrase "upon recommendation of the Secretary," found in Section 9, Chapter II, Title III, Book IV, of the Revised Administrative Code, should be interpreted, as it is normally so understood, to be a mere advise, exhortation or indorsement, which is essentially persuasive in character and not binding or obligatory upon the party to whom it is made." — This passage states the ratio decidendi: the statutory recommendation is advisory, not mandatory.
• "An "appointment" to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust." — This defines appointment and supports the Court’s conclusion that the appointing power’s act is complete upon compliance with the last required act and acceptance.
• "The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective." — This states when an appointment becomes complete.
• "In the instant case, the recommendation of the Secretary of Justice and the appointment of the President are acts of the Executive Department itself, and there is no sharing of power to speak of, the latter being deemed for all intents and purposes as being merely an extension of the personality of the President." — This distinguishes San Juan vs. CSC and explains why the local autonomy rationale does not apply.

• San Juan vs. CSC, 196 SCRA 69 — Cited by petitioners; distinguished. The Court held in that case that the DBM may appoint only from the list of qualified recommendees nominated by the Governor, stressing the constitutional mandate on local autonomy. The Court found it tangential because the present case involves no sharing of power between the Executive Department and a local government unit.
• Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 140 SCRA 22 — Reiterated in Flores vs. Drilon; held that the power to appoint is essentially discretionary and the appointing power has the right of choice, which is the heart of the power to appoint.
• Flores vs. Drilon, 223 SCRA 568 — Reiterated the discretionary nature of the appointing power and the appointing authority’s right of choice.
• Aparri vs. Court of Appeals, 127 SCRA 231 — Cited for the rule that an appointment is deemed complete once the last act required of the appointing authority has been complied with and accepted by the appointee.
• Concepcion vs. Paredes, 42 Phil. 599 — Cited for the principle that appointment to office is intrinsically an executive act involving the exercise of discretion.

• Section 9, Chapter II, Title III, Book IV, Revised Administrative Code of 1987 — Provides that all provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary. The Court interpreted “upon recommendation” as merely directory and advisory, not a mandatory prerequisite to a valid appointment.
• Article VII, Section 16, 1987 Constitution — Vests in the President the power to appoint officers not otherwise provided for by law and those authorized by law to be appointed by him. Cited to support the principle that when the Constitution or law clothes the President with power to appoint a subordinate officer, the conferment carries ample discretion.
• Article X, Section 4, 1987 Constitution — Provides that the President exercises general supervision over local governments. Cited in distinguishing San Juan vs. CSC, where the recommendation of the local chief executive was mandatory because of local autonomy; here, no such local autonomy concern existed.
• Executive Order No. 112, Section 1 — Provides that all budget officers of provinces, cities, and municipalities shall be appointed by the Minister of Budget and Management upon recommendation of the local chief executive concerned. Petitioners cited it by analogy, but the Court distinguished it because San Juan construed it in light of local autonomy.

Melo, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.