Flores vs. Drilon

A legislative proviso directing the President to appoint a specific incumbent elective official to another government post violates the constitutional proscription against appointing elective officials during their tenure and unduly restricts the President's discretionary power of appointment.

With the withdrawal of the U.S. military bases from the Philippines, Congress enacted R.A. 7227 (the "Bases Conversion and Development Act of 1992") to manage the conversion of military reservations. The law created the Subic Bay Metropolitan Authority (SBMA) and included a specific proviso mandating that the Mayor of Olongapo City serve as its Chairman and CEO for the first year of operations.

• Original Filing: Supreme Court (Original Action for Prohibition and Injunction)
• Lower Court Decision: N/A
• Appeal: N/A
• SC Action: Direct filing as an original action before the SC

• Enactment of R.A. 7227: Congress passed R.A. 7227, creating the SBMA. Section 13(d) stated the President shall appoint a professional manager as administrator, but included a proviso: "Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority."
• The Appointment: On April 3, 1992, respondent Executive Secretary Franklin Drilon appointed respondent Mayor Richard Gordon, the incumbent Mayor of Olongapo City, as Chairman and CEO of the SBMA.
• The Challenge: Petitioners, claiming to be taxpayers and employees of the U.S. Facility at Subic, filed the petition to prevent the expenditure of public funds on an unconstitutional appointment. They argued the appointment violated the prohibition on appointing elective officials, infringed on the President's appointing power, and violated the Omnibus Election Code's 45-day ban on appointments before an election.

• The proviso infringes Art. IX-B, Sec. 7 (first par.) of the Constitution because the Olongapo City Mayor is an elective official ineligible for appointment to another public office during his tenure.
• The proviso violates Art. VII, Sec. 16 of the Constitution because Congress, rather than the President, effectively made the appointment by limiting the choice to one person, thus encroaching on executive appointing power.
• The appointment violates Sec. 261(g) of the Omnibus Election Code because it was made within the 45-day prohibited period prior to the May 11, 1992 elections.

• Sec. 94 of the Local Government Code permits the appointment of a local elective official to another post if allowed by law or by the primary functions of his office.
• The SBMA posts are merely ex officio to the position of Mayor, relying on Civil Liberties Union v. Executive Secretary, which held that prohibitions on holding multiple offices do not apply to ex officio positions required by the primary functions of the official.
• If no elective official may be appointed to another post, Art. IX-B, Sec. 8 of the Constitution (allowing double compensation if authorized by law) would be rendered useless.
• The analogy of the Chairman of the Metro Manila Authority supports the validity of the appointment.

• Procedural Issues: N/A
• Substantive Issues:
  • Whether the proviso in Sec. 13(d) of R.A. 7227 violates the constitutional proscription against the appointment or designation of elective officials to other public offices during their tenure.
  • Whether the proviso unduly restricts the President's power of appointment by limiting the choice to a single individual.

• Procedural: N/A
• Substantive:
  • Violation of Art. IX-B, Sec. 7: Yes. The first paragraph of Sec. 7 contains an absolute prohibition against the appointment of elective officials to other public offices during their tenure. Unlike the second paragraph (governing appointive officials), the first paragraph provides no exceptions (except those specifically recognized in the Constitution itself, e.g., the Vice-President as Cabinet member). The argument that Sec. 94 of the Local Government Code allows exceptions fails because a legislative act cannot prevail over the Constitution. The SBMA posts are appointive, not ex officio, as the law explicitly uses the phrase "shall be appointed." An incumbent elective official must resign from his current post to cast off the constitutional disqualification before accepting an appointive position.
  • Encroachment on Appointing Power: Yes. The power to appoint is intrinsically discretionary and involves the exercise of choice. By prescribing qualifications that only one individual (the incumbent Olongapo City Mayor) can meet, Congress eliminated the President's discretion, reducing the appointment to a ministerial act. This constitutes an irregular restriction and an abuse of congressional authority, encroaching on the executive's prerogative.
  • Because the appointment was illegal, the SC no longer found it necessary to discuss the Omnibus Election Code violation.

• Prohibition on Appointment of Elective Officials — The first paragraph of Art. IX-B, Sec. 7 imposes an absolute prohibition on the appointment or designation of elective officials to any other public office during their tenure. Unlike appointive officials, no statutory exceptions are allowed. An elective official must resign from their incumbent post before becoming eligible for an appointive position.
• Power of Appointment Involves Discretion — The essence of the power to appoint is the right of choice. Congress cannot limit the President's appointing power to a single candidate under the guise of prescribing qualifications, as this strips the appointing authority of discretion and converts the appointment into a mere ministerial act.
• De Facto Officer Doctrine — An individual appointed to an office under color of an unconstitutional law is a de facto officer. Their acts involving the interest of the public and third persons are valid, and they may retain per diems, allowances, and emoluments already received.

• Art. IX-B, Sec. 7, 1987 Constitution — Prohibits elective officials from being appointed to any other public office during their tenure. The SC held the first paragraph is absolute and admits no statutory exceptions, unlike the second paragraph for appointive officials.
• Art. VII, Sec. 16, 1987 Constitution — Vests the President with the power to appoint. The SC held that the R.A. 7227 proviso encroached on this power by eliminating the President's discretion to choose.
• Sec. 13(d), R.A. 7227 — The proviso requiring the Olongapo City Mayor to be appointed SBMA Chairman/CEO. Declared unconstitutional.
• Sec. 94, Local Government Code — Cited by respondents to argue exceptions exist. The SC held a legislative act cannot prevail over the Constitution and declined to rule on the section's validity since it was not the issue.