G.R. No.

86439 April 13, 1989

MARY CONCEPCION BAUTISTA, petitioner,

vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND BAR
COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents.

Mary Concepcion Bautista for and in her own behalf.

Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA, J.:

The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of which
appointments by the President, under the 1987 Constitution, are to be made with and without the review of the
Commission on Appointments. The Mison case was the first major case under the 1987 Constitution and in construing
Sec. 16, Art. VII of the 1987 Constitution which provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.

this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's
experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in the first
sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the
executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose appointments are vested in him in this Constitution." All other
appointments by the President are to be made without the participation of the Commission on Appointments.
Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of the Bureau of
Customs, without the confirmation of the Commission on Appointments, was held valid and in accordance with the
Constitution.

The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16, Art. VII as designed
by the framers of the 1987 Constitution. But the Constitution, as construed by this Court in appropriate cases, is the
supreme law of the land. And it cannot be over-stressed that the strength of the Constitution, with all its imperfections,
lies in the respect and obedience accorded to it by the people, especially the officials of government, who are the
subjects of its commands.

Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or not the
appointment by the President of the Chairman of the Commission on Human Rights (CHR), an "independent office"
created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments
(CA, for brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the
litigation, mindful that what really matters are the principles that will guide this Administration and others in the years
to come.

Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first
sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of
the Commission on Appointments, it follows that the appointment by the President of the Chairman of the (CHR), is to
be made without the review or participation of the Commission on Appointments.

To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not
specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the
Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in
the President with the consent of the Commission on Appointments. 2

The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second
sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are
among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c),
Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the
Commission on Human Rights. It provides:

(c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term
of seven years without reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor.

The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this case of
certain elements absent in the Mison case makes necessary a closer scrutiny. The facts are therefore essential.

On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion Bautista
as "Acting Chairman, Commission on Human Rights." The letter of designation reads:

27 August 1987

M a d a m:

You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W.
Diokno and Justice J. B. L. Reyes.

Very truly yours,

CORAZON C. AQUINO

HON. MARY CONCEPCION BAUTISTA 3

Realizing perhaps the need for a permanent chairman and members of the Commission on Human Rights, befitting an
independent office, as mandated by the Constitution, 4 the President of the Philippines on 17 December 1988 extended
to petitioner Bautista a permanent appointment as Chairman of the Commission. The appointment letter is as follows:

17 December 1988

The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila

M a d a m:

Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite their
respective names in the Commission on Human Rights:

MARY CONCEPCION BAUTISTA Chairman

ABELARDO L. APORTADERA, JR Member
SAMUEL SORIANO Member
HESIQUIO R. MALLILLIN Member
NARCISO C. MONTEIRO Member

By virtue hereof, they may qualify and enter upon the performance of the duties of the office furnishing this Office and
the Civil Service Commission with copies of their oath of office.

Very truly yours,

CORAZON C. AQUINO 5

It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could
qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights,
requiring her to furnish the office of the President and the Civil Service Commission with copies of her oath of office.

On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath
of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of
office is as follows:

OATH OF OFFICE

I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having been
appointed to the position of CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will discharge to
the best of my ability all the duties and responsibilities of the office to which I have been appointed; uphold the
Constitution of the Republic of the Philippines, and obey all the laws of the land without mental reservation or purpose
of evasion.

SO HELP ME GOD.

MARY CONCEPCION BAUTISTA

SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila.

MARCELO B. FERNAN

Chief Justice
Supreme Court of the Philippines 6

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights, petitioner Bautista
discharged the functions and duties of the Office of Chairman of the Commission on Human Rights which, as previously
stated, she had originally held merely in an acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on Appointments
requesting her to submit to the Commission certain information and documents as required by its rules in connection
with the confirmation of her appointment as Chairman of the Commission on Human Rights. 7 On 10 January 1989, the
Commission on Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting of the
Commission on Appointments Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989
at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on her
appointment as Chairman of the Commission on Human Rights. 8

On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating, for the
reasons therein given, why she considered the Commission on Appointments as having no jurisdiction to review her
appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the Commission on
Appointments' Chairman reads:

January 13, 1 989

SENATE PRESIDENT JOVITO R. SALONGA

Chairman
Commission on Appointments
Senate, Manila

S i r:

We acknowledge receipt of the communication from the Commission on Appointments requesting our appearance on
January 19, 1989 for deliberation on our appointments.

We respectfully submit that the appointments of the Commission commissioners of the Human Rights Commission are
not subject to confirmation by the Commission on Appointments.

The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has expressly
mentioned the government officials whose appointments are subject to the confirmation of the Commission on
Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those.

Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional
Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it was
expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The exclusion
again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear denial of authority to
the Commission on Appointments to review our appointments to the Commission on Human Rights.

Furthermore, the Constitution specifically provides that this Commission is an independent office which:

a. must investigate all forms of human rights violations involving civil and political rights;

b. shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the
monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which may
affect human rights;

c. may call on all agencies of government for the implementation of its mandate.

The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power and
therefore the grant of that authority to review a valid exercise of the executive power can never be presumed. It must
be expressly granted.
The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of
Commissioners of the Commission on Human Rights.

In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit myself to
the Commission on Appointments for the purpose of confirming or rejecting my appointment.

Very truly yours,

MARY CONCEPCION BAUTISTA

Chairman9

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a letter of the
Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the
"ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as
Chairperson of the Commission on Human Rights" 10 and informing Secretary Macaraig that, as previously conveyed to
him in a letter of 25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad
interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit to the
jurisdiction of the Commission on Appointments. The letter reads:

1 February 1989

HON. CATALINO MACARAIG, JR.

Executive Secretary
Malacanang, Manila

S i r:

This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14
January 1989 as Chairperson of the Commission on Human Rights.

As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary
(session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on
Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments.

This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier today,
denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad
interim appointment as Chairperson of the Commission on Human Rights.

Very truly yours,

RAOUL V. VICTORINO
Secretary 11

On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista that the
motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human
Rights" was denied by the Commission on Appointments. The letter reads as follows:

1 February 1989

ATTY. MARY CONCEPCION BAUTISTA

Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila

Dear Atty. Bautista:

Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on
Appointments, assembled in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion for
reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission on Human Rights
is respectfully conveyed.

Thank you for your attention.

Very truly yours,

RAOUL V. VICTORINO
Secretary 12

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the 3
February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR Commissioner Hesiquio
R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's case which had been elevated
to the Supreme Court. The news item is here quoted in full, thus

Aquino names replacement for MaryCon

President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion
Bautista whose appointment was rejected anew by the Congressional commission on appointments.

The President designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the Commission pending the
resolution of Bautista's case which had been elevated to the Supreme Court.

The President's action followed after Congressional Commission on Appointments Chairman, Senate President Jovito
Salonga declared Bautista can no longer hold on to her position after her appointment was not confirmed for the second
time.

For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if she insists to stay on her
office.

In effect, the President had asked Bautista to vacate her office and give way to Mallillin (Mari Villa) 13

On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad
interimappointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court the
present petition for certiorari with a prayer for the immediate issuance of a restraining order, to declare "as unlawful
and unconstitutional and without any legal force and effect any action of the Commission on Appointments as well as of
the Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of the
petitioner as Chairman of the Commission on Human Rights, on the ground that they have no lawful and constitutional
authority to confirm and to review her appointment." 14

The prayer for temporary restraining order was "to enjoin the respondent Commission on Appointments not to proceed
further with their deliberation and/or proceedings on the appointment of the petitioner ... nor to enforce, implement or
act on any order, resolution, etc. issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner filed an amended
petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the designated acting
chairman as party respondent and praying for the nullification of his appointment. The succeeding day, a supplemental
urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to exercise the
functions of chairman and to refrain from demanding courtesy resignations from officers or separating or dismissing
employees of the Commission.

Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a
temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal, courtesy
resignation, i removal and reorganization and other similar personnel actions. 17 Respondents were likewise required to
comment on said amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a
copy thereof.

Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and Human Rights filed a
comment to the amended petition on 21 February 1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent
Mallillin filed a separate comment. 20 The Court required petitioner to reply to respondent Mallillin's comment
. 21 Petitioner filed her reply. 22

In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of

government, the Court did not issue a temporary restraining order directed against it. However, this does not mean that
the issues raised by the petition, as met by the respondents' comments, will not be resolved in this case. The Court will
not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did not in Mison.

As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by Her
Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December
1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17
December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted
for review and confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16, Art.
VII of the 1987 Constitution and the doctrine in Mison which is here reiterated.

The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December
1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of
office and actually assuming and discharging the functions and duties thereof, could extend another appointment to the
petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments
or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.

The Court, with all due respect to both the Executive and Legislative Departments of government, and after careful
deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President converted petitioner
Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human
Rights on 17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such
appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the
Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously,
she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo
B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission on Human
Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission on Human Rights was a
completed act on the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated
case of Marbury vs. Madison. 23
xxx xxx xxx

The answer to this question seems an obvious one. The appointment being the sole act of the President, must be
completely evidenced, when it is shown that he has done everything to be performed by him.

xxx xxx xxx

Some point of time must be taken when the power of the executive over an officer, not removable at his will must
cease. That point of time must be when the constitutional power of appointment has been exercised. And this power
has been exercised when the last act, required from the person possessing the power, has been performed. ....

xxx xxx xxx

But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by
law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute,
unconditional power of accepting or rejecting it.

xxx xxx xxx

THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989

It is respondent Commission's submission that the President, after the appointment of 17 December 1988 extended to
petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista, this time,
submitting such appointment (more accurately, nomination) to the Commission on Appointments for confirmation. And
yet, it seems obvious enough, both in logic and in fact, that no new or further appointment could be made to a position
already filled by a previously completed appointment which had been accepted by the appointee, through a valid
qualification and assumption of its duties.

Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the
Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is
solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to
the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the
suggestion that the President (with Congress agreeing) may, from time to time move power boundaries, in the
Constitution differently from where they are placed by the Constitution.

The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is concerned with
power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative
(Commission on Appointments) can create power where the Constitution confers none. The evident constitutional
intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President
and Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to
disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain
appointments for the President to make with the participation of the Commission on Appointments, so also has the
Constitution mandated that the President can confer no power of participation in the Commission on Appointments
over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no
support in the Constitution cannot be sustained.

Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review
presidential appointments, create power to confirm appointments that the Constitution has reserved to the President
alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make
without the participation of the Commission on Appointments, the executive's voluntary act of submitting such
appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done
without or in excess of jurisdiction.

EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT
UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT
COULD BE MADE ON 14 JANUARY 1989

Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the Commission on
Appointments to exercise the power of review over an appointment otherwise solely vested by the Constitution in the
President. Yet, as already noted, when the President appointed petitioner Bautista on 17 December 1988 to the position
of Chairman of the Commission on Human Rights with the advice to her that by virtue of such appointment (not, until
confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment to the subject position which, under the Constitution, is to
be made, in the first place, without the participation of the Commission on Appointments, was then and there a
complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and
actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the lawful Chairman of the
Commission on Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14
January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said office to this day.

Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was an ad
interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments
solely for the President to make, i.e., without the participation of the Commission on Appointments. Ad
interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review
of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until
disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are
for the President solely to make, that is, without the participation of the Commission on Appointments, can not be ad
interim appointments.

EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE
COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.

Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner
Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the pleasure
of the President; and that with the disapproval of Bautista's appointment (nomination) by the Commission on
Appointments, there was greater reason for her removal by the President and her replacement with respondent
Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and academic.

We do not agree that the petition has become moot and academic. To insist on such a posture is akin to deluding
oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the substantive
questions of constitutional law raised by petitioner, the records clearly show that petitioner came to this Court in timely
manner and has not shown any indication of abandoning her petition.

Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows:

WHEREAS, the Constitution does not prescribe the term of office of the Chairman and Members of the Commission on
Human Rights unlike those of other Constitutional Commissions;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order:

SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in
office shall be at the pleasure of the President.

SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the year
of Our Lord, nineteen hundred and eighty-seven.

(Sgd.) CORAZON C. AQUINO

President of the Philippines

By the President:

(Sgd.) JOKER P. ARROYO

Executive Secretary 24

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was issued by the President, Sec.
2(c) of which provides:

Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a
term of seven years without reappointment. Appointments to any vacancy shall be only for the unexpired term of the
predecessor.

It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and
Members of the Commission on Human Rights which is seven (7) years without reappointment the later executive
order (163-A) speaks of the tenure in office of the Chairman and Members of the Commission on Human Rights, which is
"at the pleasure of the President."

Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) Concepcion in his
concurring opinion in Alba vs. Evangelista, 26 stated:

The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no officer or employee in
the Civil Service may be removed or suspended except for cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon
the pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the
expiration of his term. 27

When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision that
"the term of office and other qualifications and disabilities of the Members of the Commission (on Human Rights) shall
be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution).

As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years, without
reappointment, as provided by Executive Order No. 163, and consistent with the constitutional design to give the
Commission the needed independence to perform and accomplish its functions and duties, the tenure in office of said
Chairman (and Members) cannot be later made dependent on the pleasure of the President.

Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of the
President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express provision in
Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the
President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the
Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and Members
of the Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to
be independent as the Commission on Human Rights-and vested with the delicate and vital functions of investigating
violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures
therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional.

The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional destruction. The
proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with the constitutional intent
of independence for the Commission. Thus

MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact
that regardless of who is the President or who holds the executive power, the human rights issue is of such importance
that it should be safeguarded and it should be independent of political parties or powers that are actually holding the
reins of government. Our experience during the martial law period made us realize how precious those rights are and,
therefore, these must be safeguarded at all times.

xxx xxx xxx

MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of the Commission on
Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain
commissioner and that commissioner is subject to the President, therefore, any human rights violations committed
under the person's administration will be subject to presidential pressure. That is what we would like to avoid to
make the protection of human rights go beyond the fortunes of different political parties or administrations in power. 28

xxx xxx xxx

MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief Justice Concepcion and retired
Justice J.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from
executive influence because many of the irregularities on human rights violations are committed by members of the
armed forces and members of the executive branch of the government. So as to insulate this body from political
interference, there is a need to constitutionalize it. 29

xxx xxx xxx

MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I would refer to a previous
inquiry that there is still a need for making this a constitutional body free or insulated from interference. I conferred
with former Chief Justice Concepcion and the acting chairman of the Presidential Committee on Human Rights, retired
Justice J.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from
executive control or interferences, since many of the abuses are committed by the members of the military or the
armed forces. 30

xxx xxx xxx

MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to Congress, this commission will
be within the reach of politicians and of public officers and that to me is dangerous. We should insulate this body from
political control and political interference because of the nature of its functions to investigate all forms of human rights
violations which are principally committed by members of the military, by the Armed Forces of the Philippines. 31

xxx xxx xxx

MR. GARCIA. The critical factor here is political control, and normally, when a body is appointed by Presidents who may
change, the commission must remain above these changes in political control. Secondly, the other important factor to
consider are the armed forces, the police forces which have tremendous power at their command and, therefore, we
would need a commission composed of men who also are beyond the reach of these forces and the changes in political
administration. 32

xxx xxx xxx

MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to function effectively, must
be invested with an independence that is necessary not only for its credibility but also for the effectiveness of its work.
However, we want to make a distinction in this Constitution. May be what happened was that it was referred to the
wrong committee. In the opinion of the committee, this need not be a commission that is similar to the three
constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be in that article. 33

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is not involved in the project.
How sure are we that the next President of the Philippines will be somebody we can trust? Remember, even now there
is a growing concern about some of the bodies, agencies and commission created by President Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is giving less importance to a truly fundamental
need to set up a body that will effectively enforce the rules designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission
on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988, and her acceptance
thereof, is not to say that she cannot be removed from office before the expiration of her seven (7) year term. She
certainly can be removed but her removal must be for cause and with her right to due process properly safeguarded. In
the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-
owned corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the case of
the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her with the
Ombudsman. If he finds a prima facie case against her, the corresponding information or informations can be filed with
the Sandiganbayan which may in turn order her suspension from office while the case or cases against her are pending
before said court. 37 This is due process in action. This is the way of a government of laws and not of men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her case to
this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human Rights (pending
decision in this case) instead of appointing another permanent Chairman. The latter course would have added only more
legal difficulties to an already difficult situation.

WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly appointed Chairman of
the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and
emoluments of said office. The temporary restraining order heretofore issued by the Court against respondent Mallillin
enjoining him from dismissing or terminating personnel of the Commission on Human Rights is made permanent.

SO ORDERED

CONCEPCION-BAUTISTA VS SALONGA

Posted by kaye lee on 11:14 PM

G.R. No. 86439 April 13 1989 [Appointing Power]

FACTS:

The President appointed Mary Concepcion Bautista as the Chairman of the Commission on Human Rights pursuant to
the second sentence in Section 16, Art. VII, without the confirmation of the CoA because they are among the officers of
government "whom he (the President) may be authorized by law to appoint." Section 2(c), Executive Order No. 163,
authorizes the President to appoint the Chairman and Members of the Commission on Human Rights. CoA disapproved
Bautista's alleged ad interim appointment as Chairperson of the CHR in view of her refusal to submit to the jurisdiction
of the Commission on Appointments.

ISSUES:
1. Whether or not Bautista's appointment is subject to CoA's confirmation.

2. Whether or not Bautista's appointment is an ad interim appointment.

RULING:

1. No. The position of Chairman of CHR is not among the positions mentioned in the first sentence of Sec. 16 Art 7 of the
Constitution, which provides that the appointments which are to be made with the confirmation of CoA. Rather, it is
within the authority of President, vested upon her by Constitution (2nd sentence of Sec. 16 Art 7), that she appoint
executive officials without confirmation of CoA.

The Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential
appointments, cannot create power to confirm appointments that the Constitution has reserved to the President alone.

2. Under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to
make. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where
the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until
disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are
for the President solely to make, that is, without the participation of the Commission on Appointments, cannot be ad
interim appointments.
EPZA VS CHR

Facts:

Valles, Aedia and Ordonez filed with CHR a joint complaint against EPZA for allegedly violating their human rights when
EPZA Project Engineer Damondamon along with 215 the PNP Company tried to level the area occupied by
complainants.The same parcel of land was reserved and allocated for purpose of development into Cavite Export
Processing Zone which was bought by Filoil Refinery Corporation and was later sold to EPZA.CHR issued an order of
injunction for EPZA and company to desist from committing further acts of demolition, terrorism and harassment until
further order. 2 weeks later the group started bulldozing the area and CHR reiterated its order of injunction, including
the Secretary of Public Works and Highways to desist fromdoing work on the area. EPZA filed a motion to life the order
with CHR for lack of authority and said motion wasdismissed.EPZA filed the case at bar for certiorari and prohibition
alleging that CHR acted in excess of
its jurisdiction in issuing a restraining order and injunctive writ; that the private respondents have no clear and positive
right to be protected by an injunction; and that CHR abused its discretion in entertaining the complaint. EPZAs petition
was granted and a TRO was issued ordering CHR to cease and desist from enforcing/implementing the injunction orders.
CHR commented that its function is not limited to mere investigation (Art. 13, Sec. 18 of the 1987 Constitution).

Issue:

WON CHR has the jurisdiction to issue a writ of injunction or restraining order against supposed violatorsof human
rights, to compel them to cease and desist from continuing the acts complained of.

Held:

The SC held that CHR is not a court of justice nor even a quasi-judicial body. The most that may be conceded to the
Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact
as regards claimed human rights violations involving civil and political rights. But fact-finding is not adjudication, and
cannot be likened to the judicial function of a court of justice, or even aquasi-judicial agency or official. The function of
receiving evidence and ascertaining there from the facts of a controversy is not a judicial function, properly speaking.
The constitutional provision directing the CHR to "provide for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need protection" may not be construed to confer jurisdiction
on the Commission to issue are straining order or writ of injunction for, if that were the intention, the Constitution
would have expressly said so. Jurisdiction is conferred by law and never derived by implication. Evidently, the
"preventive measures and legal aid services" mentioned in the Constitution refer to extrajudicial and judicial remedies
(including a preliminary writ of injunction) which the CHR may seek from the proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR itself hasno jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued "by the judge of any court in which the action is pending [within his district],
or by a Justice of the Court of Appeals, or of the Supreme Court .A writ of preliminary injunction is an ancillary remedy.
It is available only in a pending principal action, for the preservation or protection of the rights and interest of a party
thereto, and for no other purpose. EPZAs petition is granted