MARY CONCEPCION BAUTISTA vs. SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, EN BANC, G.R. No. 86439 April 13, 1989.
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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
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. X x x.
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