CASE DIGEST: ROBERTO FLORES, ET AL., VS. FRANKLIN DRILON, ET AL., GR NO. 104732 June 22, 1993

FACTS:

The constitutionality of Sec. 13, par. (d) of RA 7227 otherwise known as the Bases Conversion and Development Act of 1992 was challenged in this original petition. 

Under Section 13, par. (d) RA 7227:

"The President shall appoint a professional manager as the Administrator of the Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex-officio chairman of the Board and who shall serve as the Chief Executive Officer of the Subic Authority. 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."

Respondent Franklin Drilon was then the incumbent Mayor of the City of Olongapo.

With this petitioners, who claims to be taxpayers, employees of the US Facility at the Subic Zambales and officers and members of the Filipino Civilian Employees Association in US Facilities in the Philippines, maintain that the provision in par (d) of Section 13 infringes the following constitutional and statutory provisions:

(a) Sec. 7 (1) Art. IX-B of the Constitution, which states that "no elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure."

(b) Sec. 16, Art. VII of the Constitution, which provides that the President shall 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.

(c) Sec. 261 par. (g) of the Omnibus Election Code which provides Prohibition on Appointments within prohibited 45-day period prior to the May 11, 1992 Elections.

ISSUE:
Whether the provision in Section 13 (d) of RA 7227 violates constitutional prohibition on appointments.

RULING:

Yes. The provision violates constitutional prohibition.

Under Section 7 of Article IX-B:

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government owned or controlled corporations or their subsidiaries.

This section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full time with dedication and thus be efficient in the delivery of public services.

The first paragraph of Section 7 prevents a situation where a local elective official will work for his appointment in an executive position in government, and thus neglect his constituents.

In this case, the provision directing the President to appoint the Mayor of Olongapo City, an elective official to other government posts contravenes Section 7, first paragraph of Article IX-B of the Constitution.

There must be a clear-cut difference in the wording of the 2 paragraphs of Section 7 Article IX-B of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as one particularly recognized in the constitution itself.

The contention of the respondent that the holding of the position is merely ex-officio cannot stand. The position he held is not adjunct to the functions of his office being the Mayor. Ex-officio positions are those positions in extension of the primary function of the elective official. 

The legislative enactment also encroach the Power of the President to appoint because the questioned act actually dictates the President whom to appoint. Appointment is in essence discretionary on the part of the appointing authority, hence the appointing authority has the power to choose whom to appoint, the one he thinks knowledgeable and able to hold the position.