FLORES V DRILON
Petitioners, taxpayers and employees of U.S facilities at Subic, challenge the constitutionality of Sec. 13 (d) of the Bases Conversion and Development Act of 1992 which directs the President to appoint a professional manager as administrator of the SBMA…provided that “for the 1st year of its operations, the mayor of Olongapo City (Richard Gordon) shall be appointed as the chairman and the CEO of the Subic Authority.”
(1) Whether the proviso violates the constitutional proscription against appointment or designation of elective officials to other government posts.
(2) Whether or not the SBMA posts are merely ex officio to the position of Mayor of Olongapo City and thus an excepted circumstance.
(3) Whether or not the Constitutional provision allowing an elective official to receive double compensation (Sec. 8, Art. IX-B) would be useless if no elective official may be appointed to another post.
(4) Whether there is legislative encroachment on the appointing authority of the President.
(5) Whether Mayor Gordon may retain any and all per diems, allowances and other emoluments which he may have received pursuant to his appointment.
(1) YES, Sec. 7 of Art. IX-B of the Constitution Provides: 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. The subject proviso directs the President to appoint an elective official i.e. the Mayor of Olongapo City, to other government post (as Chairman and CEO of SBMA). This is precisely what the Constitution prohibits. It seeks to prevent a situation where a local elective official will work for his appointment in an executive position in government, and thus neglect his constitutents.
(2) NO, Congress did not contemplate making the SBMA posts as automatically attached to the Office of the Mayor without need of appointment. The phrase “shall be appointed” unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City.
(3) NO, Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President for example, an elective official who may be appointed to a cabinet post, may receive the compensation attached to the cabinet position if specifically authorized by law.
(4) YES, although Section 13(d) itself vests in the President the power to appoint the Chairman of SBMA, he really has no choice but to appoint the Mayor of Olongapo City. The power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint. Hence, when Congress clothes the President with the power to appoint an officer, it cannot at the same time limit the choice of the President to only one candidate. Such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.
(5) YES, as incumbent elective official, Gordon is ineligible for appointment to the position of Chairman and CEO of SBMA; hence, his appointment thereto cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, and in accordance with jurisprudence, is entitled to such benefits.