CASE DIGEST: BERMUDEZ ET. AL., VS. EXECUTIVE SECRETARY GR. NO. 131429 AUGUST 4, 1999

FACTS:

There occurred a vacancy in the Office of the Provincial Prosecutor of Tarlac. Justice Sec. Guingona recommended Bermudez while Quiaoit was supported by then Rep. Jose Yap.

On June 30, 1997, Quiaoit was appointed by then President Ramos to the coveted office. Quiaoit assumed office upon receipt of his certified xerox copy of the appointment and after taking an oath. However, Bermudez still refuses to vacate the Office of the Provincial Prosecutor. Bermudez contends that the provision under Book IV, Title III, Chapter II, Section 9 of the Revised Administrative Code (RAC) of 1987 is not complied with for the appointment of Quiaoit lacks recommendation from Justice Secretary.

ISSUE:

Whether there is a need for a recommendation from the Justice Secretary to make the respondent's appointment effective.

RULING:

No, the provision given in Section 9 of RAC of 1987 must not be misunderstood. Under the said provision:

"All provincial and City Prosecutors and their assistants shall be appointed by the President upon  the recommendation of the Secretary of Justice" 

This provision must not be construed as a mandatory requirement of prior recommendation by the Justice Secretary. 

In this case, the provision is not mandatory in character. The power to appoint is, in essence, a discretionary one. The phrase "upon recommendation of the Secretary of justice" should be interpreted as mere advice, exhortation or indorsement, which is essentially persuasive in character and not binding or obligatory upon the party to whom it is made.

An appointment to 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. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibility. 

The Constitution clothed the President with the power to appoint a subordinate officer. Being the head of the government his authority includes the power of control over all executive departments, bureaus and offices, and the power to assume directly the functions of the latter. Hence, the President can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations.

Thus, the appointment made by the President as the head of all executive department who has the over all control of it shall be valid even without recommendation of the Secretary of Justice.

Comments

Popular Posts