First of two parts
LET me share in this issue a 2012 Supreme Court (SC)-decided case upholding the right of the President of the Philippines to replace a government official (who is a not a Career Executive Service Officer, or Ceso) occupying a Director III position. This case also discusses the concepts of permanent, temporary and coterminous appointments in third-level positions in relation to the right of a newly elected President to appoint and/or replace such officials. Also, our readers should learn that a career civil servant who rose from the ranks (from a second-level position, for example) and who should have security of tenure may lose such protection if he is appointed to a third-level position (unless he acquires the necessary Career Executive Service Eligibility for third-level officials).
It may be important to note that the legal principles enunciated in this case are deemed applicable to all third-level officials (e.g., Director IV, Assistant Secretaries and Undersecretaries), who are required to be Cesos, in order to be considered appointed in a “permanent” capacity. Otherwise, such third-level officials are considered appointed in an “acting or temporary” or “coterminous to the appointing authority” capacity. Please read the following jurisprudence which is directly (or substantially) quoted or paraphrased from the SC-decided case of Samuel Ong v. Office of the President, et. al., GR. No. 184219, January 30, 2012, penned by Justice Reyes.
The petitioner in this case is Samuel Ong, former Director III of the National Bureau of Investigation (NBI). He sought to set aside the decision of the Court of Appeals (CA) denying his petition for quo warranto, questioning, among others, the appointment of respondent Victor A. Bessat as NBI Director III (Deputy Director) as replacement of the petitioner sometime in 2004.
The CA summarized the facts of the case as follows:
Petitioner Ong joined the NBI as a career employee in 1978. He held the position of NBI Director I from July 1998 to February 1999 and NBI Director II from February 1999 to September 5, 2001. On September 6, 2001, petitioner was appointed Director III by the President. The appointment paper stated, among others, that Petitioner was appointed as Director III (Deputy Director) “coterminous with the appointing authority.”
On June 3, 2004, petitioner received from respondent Reynaldo Wycoco a memorandum “informing him that his appointment, being coterminous with the appointing authority’s tenure, would end effectively at midnight on June 30, 2004, and, unless a new appointment would be issued in his favor by the President consistent with her new tenure effective July 1, 2004, he would be occupying his position in a de facto/holdover status until his replacement would be appointed.”
On December 1, 2004, President Gloria Macapagal-Arroyo appointed respondent Victor A. Bessat as NBI Director III (Deputy Director) as replacement of the petitioner. Consequently, respondent Wycoco notified the petitioner that, effective December 17, 2004, the latter should cease and desist from performing his functions as NBI Director III, in view of the presidential appointment of respondent Bessat as petitioner’s replacement. The petitioner received the aforementioned notice only on January 27, 2005.
On February 22, 2005, Ong filed before the CA a petition for quo warranto.He sought for the declaration as null and void of (a) his removal from the position of NBI Director III; and (b) his replacement by respondent Victor Bessat (Bessat). Ong, likewise, prayed for reinstatement and back wages.
The CA denied Ong’s petition. Ong went to the SC.
Petitioner Ong contended, among others, that it was erroneous for the CA to equate an “appointment coterminous with the tenure of the appointing authority” with one that is “at the pleasure of such appointing authority.” Ong’s counsel then distinguished “a term as the time during which the officer may claim to hold office as of right” from “a tenure, which represents the term during which the incumbent actually holds the office.” Thus, Ong’s appointment, from which he cannot be removed without just cause, was coterminous with the President’s tenure, which ended not on June 30, 2004, but only on June 30, 2010 (i.e., considering that President Arroyo was reelected in 2004 and her term of office expired in 2010). Ong also cited Section 2(b), Article IX-G of the 1987 Constitution and Jocom v. Regalado to stress that government employees, holding both career and noncareer service positions, are entitled to protection from arbitrary removal or suspension.
In the case of Ong, who started his employment in 1978 and rose from the ranks, it is allegedly improper for the CA to infer that the President converted his supposed promotional appointment to one removable at the pleasure of the appointing authority. To be concluded
This column should not be taken as a legal advice applicable to any case, as each case is unique and should be construed in light of the attending circumstances surrounding such particular case.
Lawyer Toni Umali is the current assistant secretary for Legal and Legislative Affairs of the Department of Education (DepEd). He is licensed to practice law not only in the Philippines, but also in the state of California and some federal courts in the US after passing the California State Bar Examinations in 2004. He has served as a legal consultant to several legislators and local chief executives. As education assistant secretary, he was instrumental in the passage of the K to 12 law and the issuance of its implementing rules and regulations. He is also the alternate spokesman of the DepEd.
1 comment
Interesting point of discussion, Asec. Umali. It answers some curious questions about government officials.