Sana vs. Career Executive Service Board

Once EO 883 was expressly revoked by EO 3 and CESB Resolution No. 870 was impliedly revoked, a petition challenging their constitutionality no longer presented a case or controversy and was dismissed as moot, absent the recognized exceptions to mootness.

Petitioner Atty. Elias Omar A. Sana challenged the conferment of Career Executive Service Officer (CESO) rank on lawyers in the government executive service, while respondent Career Executive Service Board (CESB) maintained that appointment to a CES rank is not equivalent to appointment to an office. The dispute turns on Section 15, Article VII of the 1987 Constitution, which bars the President from making appointments during the period immediately before presidential elections and up to the end of the term, except temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. The CESB is the agency vested by law with the power to promulgate rules, standards, and procedures on the selection, classification, compensation, and career development of CES members.

On 28 May 2010, President Gloria Macapagal-Arroyo issued EO 883 granting the rank of CESO III or higher to officers and employees occupying legal positions in the government executive service who had obtained graduate degrees in law and successfully passed the bar examinations. EO 883 invoked the grant of CESO rank to government personnel who successfully complete certain graduate programs, such as Masters in Public Safety Administration and Masters in National Security Administration, as basis for granting CESO rank to government lawyers in the executive service.

On 2 June 2010, the CESB issued Resolution No. 870 finding no legal impediment for the President to vest CESO rank to executive officials during the periods covered by the constitutional ban on midnight appointment and the statutory ban on pre-election appointment. It reasoned that appointment to a position pertains to selection by the authority vested with the power of an individual who is to exercise the functions of a given office; that appointment to a CES rank cannot properly be deemed synonymous to an appointment to a position in the legal sense because it is merely a completion of a previous appointment and does not entail the conferment of authority to exercise the functions of an office; and that in the CES concept, the word “appoint” means a step in the bestowal of a CES rank to which one is entitled after having complied with all the requirements prescribed by the CESB. The CESB subsequently endorsed to President Arroyo its recommendation to vest CESO rank to 13 officials from various departments and agencies, including three members of the CESB who signed CESB Resolution No. 870.

On 10 June 2010, President Arroyo appointed the 13 officials to varying CESO ranks. On 30 July 2010, President Benigno S. Aquino III issued EO 3 expressly revoking EO 883 under Section 1 and all administrative orders, proclamations, rules and regulations that conflict with EO 3 under Section 2. As basis for the repeal, the fifth “Whereas” clause of EO 3 provides that EO 883 encroaches upon the power of the CESB to promulgate rules, standards and procedures on the selection, classification, compensation and career development of members of the Career Executive Service.

On 4 August 2010, petitioner Atty. Elias Omar A. Sana filed the present petition, contending that EO 883 and the subsequent appointment of the 13 executive officials to CESO rank are void for violating the constitutional ban on midnight appointment under Section 15, Article VII of the Constitution. Petitioner theorized that appointments to positions and ranks in the CES are “executive” in nature and, if made within the period provided under Section 15, Article VII, fall under its prohibition. Petitioner submitted that CESB Resolution No. 870 circumvents Section 15, Article VII by distinguishing the terms “appoint” and “appointment,” and contended that CESB Resolution No. 870 cannot give new meaning to presidential issuances, laws, and the Constitution. The CESB itself stated that no conferment of CESO rank was ever made by President Arroyo in relation to EO 883.

• Midnight Appointment Ban: Petitioner argued that EO 883 and the subsequent appointment of the 13 executive officials to CESO rank are void for violating the constitutional ban on midnight appointment under Section 15, Article VII of the Constitution.
• Nature of CES Rank: Petitioner maintained that appointments to positions and ranks in the CES are “executive” in nature and, if made within the period provided under Section 15, Article VII, fall under its prohibition.
• CESB Resolution No. 870: Petitioner contended that CESB Resolution No. 870 circumvents Section 15, Article VII by distinguishing the terms “appoint” and “appointment,” and that the resolution cannot give new meaning to presidential issuances, laws, and the Constitution.

• Mootness (CESB): The CESB prayed for dismissal of the petition because the issue it raised was rendered moot by EO 3’s revocation of EO 883.
• CES Rank Not Appointment to Office (CESB): The CESB defended the vesting of CESO rank to the 13 officials based on Atty. Ferdinand Rafanan’s opinion that appointment to a CESO rank is not equivalent to an appointment to an office, since the latter entails conferment of authority to exercise the functions of an office while the former is merely a completion of a previous appointment; Rafanan further opined that such vesting does not contemplate any hiring or appointment because it involves only the conferment of a rank rather than a selection for a position.
• IRP Basis (CESB): The CESB invoked Article IV, Part III, paragraph (c) of the Integrated Reorganization Plan, which states that appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligibles recommended by the Board, and that such appointments shall be made on the basis of rank.
• Not Automatic; No Conferment (CESB): The CESB submitted that the grant of CESO rank III or higher to lawyers in the executive service under EO 883 is “not automatic” because it needs prior guidelines from the CESB, and pointed out that President Arroyo did not confer CESO rank to any official based on EO 883.
• Mootness (OSG): The Office of the Solicitor General joined causes with the CESB in praying for dismissal for mootness, contending that President Aquino’s issuance of EO 3 revoking EO 883 moots the issue on the latter’s validity, and arriving at the same conclusion on the validity of the appointment of the 13 officials in light of the CESB’s resubmission to President Aquino of its recommendation for the vesting of CESO rank to the same officials.
• Alternative Constitutionality (OSG): Alternatively, the OSG argued that EO 883 is unconstitutional for violating Section 15, Article VII of the Constitution, and added that even if EO 883 is valid, it does not automatically confer CESO rank to lawyers holding CES positions.

• Mootness: Whether the petition challenging EO 883 and CESB Resolution No. 870 should be dismissed as moot after EO 3 expressly revoked EO 883 and impliedly revoked CESB Resolution No. 870.
• Relaxation of Case and Controversy Requirement: Whether the SC should nevertheless relax the case and controversy requirement and pass upon the constitutionality of EO 883 and CESB Resolution No. 870.

• Mootness: Yes. The petition was dismissed as moot because EO 883 and CESB Resolution No. 870 had ceased to have any force and effect, leaving no case or controversy for judicial review.
• Relaxation of Case and Controversy Requirement: No. The recognized exceptions did not apply; the question could be decided beyond the appointments-ban period, and petitioner suffered no violation of a vested right.

• Mootness: The petition sought review of the constitutionality of EO 883 and CESB Resolution No. 870 for being repugnant to Section 15, Article VII of the Constitution. At the time the petition was filed, however, President Aquino had already issued EO 3 revoking EO 883 expressly under Section 1 and CESB Resolution No. 870 impliedly under Section 2. EO 883 and CESB Resolution No. 870 having ceased to have any force and effect, the SC found no reason to reach the merits of the petition and pass upon the issuances’ validity; to do so would transgress the requirement of case and controversy as a precondition for the exercise of judicial review. The SC also noted that petitioner did not allege any violation of a right vested in him under EO 883, that he was not among the 13 officials granted CESO ranking by President Arroyo, and that the CESB itself stated that no conferment of CESO rank was ever made by President Arroyo in relation to EO 883. To reach the merits despite the unquestioned repeal and the absence of any resulting prejudice to petitioner’s rights would depart from the SC’s constitutional role of settling actual controversies involving rights which are legally demandable and enforceable.

• Relaxation of Case and Controversy Requirement: The SC acknowledged that it had relaxed the case and controversy requirement to resolve moot issues, but only where the issues presented were grounded on a peculiar set of facts giving rise to important constitutional questions capable of repetition yet evading review, or indicating intent on the part of potential or actual parties to place a constitutional question beyond the ambit of judicial review by performing acts rendering moot an incipient or pending justiciable controversy. These factors did not obtain. The question whether an appointment to a CESO rank of an executive official amounts to an “appointment” for purposes of the constitutional ban on midnight appointment, while potentially recurring, held no certainty of evading judicial review because the question could be decided even beyond the appointments-ban period under Section 15, Article VII of the Constitution. Petitioner also did not allege that he suffered any violation of a right vested in him under EO 883, and he was not among the 13 officials granted CESO ranking by President Arroyo. The SC therefore declined to reach the merits and dismissed the petition.

• Mootness and Case or Controversy — A petition challenging the constitutionality of an executive order and an administrative resolution that have already been expressly or impliedly revoked is moot and must be dismissed for lack of a case or controversy. The SC applied this rule because EO 3 had expressly revoked EO 883 and impliedly revoked CESB Resolution No. 870 before the petition was filed, and no actual controversy remained for judicial review.
• Exceptions to Mootness — The SC may relax the case and controversy requirement to resolve moot issues where (a) the issues presented are grounded on a peculiar set of facts giving rise to important constitutional questions capable of repetition yet evading review, or (b) there is an intent on the part of potential or actual parties to place a constitutional question beyond the ambit of judicial review by performing acts rendering moot an incipient or pending justiciable controversy. The SC applied this test and found neither factor present: the question could be decided even beyond the appointments-ban period, and petitioner alleged no vested right violated under EO 883.
• Judicial Review and Actual Controversy — Judicial review requires an actual controversy involving rights which are legally demandable and enforceable. The SC applied this requirement by refusing to pass upon the constitutionality of EO 883 and CESB Resolution No. 870 after their revocation, especially where petitioner was not among the 13 officials granted CESO rank and suffered no resulting prejudice.

• "EO 883 and CESB Resolution No. 870 having ceased to have any force and effect, the Court finds no reason to reach the merits of the petition and pass upon these issuances’ validity. To do so would transgress the requirement of case and controversy as precondition for the Court’s exercise of judicial review." — This passage states the core reason for dismissing the petition: the revocations removed the issuances from judicial review.
• "True, this Court had relaxed the case and controversy requirement to resolve moot issues. In those instances, however, the issues presented were grounded on peculiar set of facts giving rise to important constitutional questions capable of repetition yet evading review or indicating intent on the part of potential or actual parties to place a constitutional question beyond the ambit of judicial review by performing acts rendering moot an incipient or pending justiciable controversy." — This passage sets out the recognized exceptions to mootness that the SC considered before declining to reach the merits.
• "Indeed, petitioner does not allege to have suffered any violation of a right vested in him under EO 883. He was not among the 13 officials granted CESO ranking by President Arroyo." — This passage records the absence of prejudice to petitioner, which reinforced the mootness dismissal.

• Alunan vs. Mirasol, 342 Phil. 467 (1997) — Cited as an example of the exception to mootness for issues capable of repetition yet evading review, involving the holding of Sangguniang Kabataan elections.
• Province of North Cotabato vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), G.R. No. 183591, 14 October 2008, 568 SCRA 402, 461 — Cited for the voluntary cessation exception: once a suit is filed and the doer voluntarily ceases the challenged conduct, the case does not automatically become moot.
• David vs. Arroyo, 522 Phil. 705 (2006) — Cited as an example where the SC reviewed the validity of Presidential Proclamation No. 1017 despite its express repeal by Presidential Proclamation No. 1021 after the petitions were filed.

• Section 15, Article VII, 1987 Constitution — Bars the President or Acting President from making appointments two months immediately before the next presidential elections and up to the end of the term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Petitioner invoked this provision against EO 883 and the CESO appointments, but the SC did not reach the merits because the petition was moot.
• Section 1, Article VIII, 1987 Constitution — Provides that judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. The SC applied this requirement in dismissing the petition for lack of a case or controversy after EO 883 and CESB Resolution No. 870 were revoked.