Facts: Petitioner Oscar Bermudez, the First Assistant Provincial Prosecutor of Tarlac and Officer-in-Charge of the Office of Provincial Prosecutor, was a recommendee of then Sec. of Justice Guingona for the position of Provincial Prosecutor. Private respondent Atty. Conrado Quiaoit had the support of then Representative Yap of the Second District of Tarlac. Quiaoit was appointed by Pres. Ramos to the office. Quiaoit took his oath and assumed office. Bermudez refused to vacate the Office of the Provincial Prosecutor. Nonetheless, Quiaoit, performed the duties and functions of the Office of Provincial Prosecutor. Petitioner Bermudez challenged the appointment of Quiaoit primarily on the ground that the appointment lacks the recommendation of the Sec. Of Justice prescribed under the Revised Administrative Code of 1987. Section 9, Chap. II, Title III, Book IV of the Revised Administrative Code provides that “all provincial and city prosecutors and their assistants shall be appointed by the Pres. upon the recommendation of the Secretary.”
Issue: Whether or not the absence of a recommendation of the Secretary of Justice to the President can be held fatal to the appointment of Quiaoit
Held: An appointment to a 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. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective.
The power to appoint is, in essence, discretionary. The appointing authority 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 eligibilities.
When the Constitution or the law clothes the Pres. with the power to appoint a subordinate officer, such conferment must be understood as necessarily carrying with it an ample discretion of whom to appoint. The Pres. is the head of government whose authority includes the power of control over all “executive departments, bureaus and offices.” Control means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the performance of his duties, as well as to substitute the judgment of the latter, as and when the former deems it to be appropriate. The Pres. has the power to assume directly the functions of an executive department, bureau and office. It can therefore be inferred that the Pres. can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations.
The phrase “upon recommendation of the Secretary” found in Sec. 9, Chap. II, Title III, Book IV of the Revised Administrative Code should be interpreted to be a mere advice, exhortation or indorsement, which is essentially persuasive in character and not binding or obligatory upon the party to whom it is made. The recommendation is here nothing really more than advisory in nature. The Pres., being the head of the Executive Department, could very well disregard or do away with the action of the departments, bureaus or offices even in the exercise of discretionary authority, and in so opting, he cannot be said as having acted beyond the scope of his authority.
0 comments:
Post a Comment