The parties hereto are litigating over the position of third member of the Commission on Elections, which according to the Constitution, consists of one chairman and two members. Actual chairman is the incumbent Hon. Juan V. Borra; the undisputed incumbent member is Hon. Sixto Brillantes.

In establishing the Commission, the Constitution provided that the Commissioners shall hold office for nine years and may not be reappointed. However, it also provided that of those first appointed, " one shall hold office for nine years, another for six years and the third for three years."

Since 1941, changes occurred in the membership of the Commission. And in March 1955, in a similar dispute [Republic vs. Imperial] ^[a], we had occasion to discuss the terms of office and the tenure of said officers. We held that the term of the first chairman (Jose Lopez Vito, 9 years) began on June 21, 1941, and ended on June 20, 1950 ^[b] ; that the term of the second member (Francisco Enage, 6 years) began on June 21, 1941, and ended June 20, 1947 ^[b]; and that of the third member (3 years-left vacant) began on June 21, 1941 to terminate June 20, 1944. Proceeding further, we held that when in 1945 Vicente de Vera was appointed member, he must have been placed in the only vacant position at that time, namely, the position whose term expired in June 1944 (third member)-and that he must be deemed to have been appointed to a nine-year term (expiring June 1953), which is the term given by law to all commissioners^[c] appointed after June 20, 1944. Then upon the first vacancy by expiration of the initial 6-year term (second member) and the cessation of Commissioner Enage in November 1949^[d], Rodrigo Perez was appointed (December 1949) to the nine-year term expiring in June 1956. Afterwards, in May 1947, chairman Jose Lopez Vito died before the expiration of his full term. To succeed him as chairman, Commissioner de Vera was appointed-which appointment, we held, could only be for the unexpired period of Lopez Vito's original term, i. e., up to June 20, 1950. To fill the vacancy of third member arising upon Vera's assumption of the chairmanship, Leopoldo Rovira was appointed member on May 22, 1947, and his tenure of office could not legally extend beyond that of former Commissioner Vera: June 20, 1953 ^[e]. Upon expiration of Chairman Vera's term on June 20, 1950, Domingo Imperial assumed the office with a term due to expire on June 20, 1959.

Thus the line of succession, terms of office and tenure of the chairman and members of the Commission as of March 1955, may be outlined as follows:

	Incumbent	Office Term	Tenure
Chairman (9-yr. original)	Lopez Vito   V. Vera   D. Imperial	June 21, 1941 to June 20, 1950   June 1950 to June 1959	June 1941 to May 1947 May 1947 to June 1950 June 1950 to June 1959
Second Member (6-yr. original)	F. Enage R. Perez	June 21, 1941 to June 29, 1947 June 1947 to June 1956	June 1941 to June 1947[x] Dec. 1949 to June 1956
Third Member (3-yr. original)	Vacant Vera Rovira[z]	June 1941 to June 1944 June 1944 to June 1953	July 1945 to May 1947 May 1947 to June 1953

To repeat, this was the legal state of affairs in the Commission on Elections in March 1955 when our aforesaid decision was promulgated.^[ee]

Thereafter, in May 1955, the President appointed Gaudencio Garcia a member for a term expiring June 20, 1962 to succeed Leopoldo Rovira, who died in office in September 1954^[f]; in December 1956, Sixto Brillantes was appointed member to succeed Rodrigo Perez; and in May 1958, Jose P. Carag was appointed to succeed Domingo Imperial (resigned) as chairman; Carag's term and tenure ended in June 1959; and on May 12, 1960, the President appointed Garcia as Chairman to hold office up to June 1962, and the latter assumed the chairmanship accordingly.

On May 12, 1960, Genaro Visarra, was also appointed member of the Commission. Then in August 1962, Juan V. Borra was named chairman to succeed Garcia, whose tenure expired in June 1962. And in November 1962, the President appointed Miraflor as member, on the assumption that Visarra's term of office had expired in June 1962.

In this suit, Visarra challenges the right of Miraflor to hold (as against him) the office of member.

It was admitted at the oral argument that if we follow the holding and the implication of our decision in Republic vs. Imperial, supra, the respondent Miraflor must be declared the winner. Indeed, in said decision, we established three lines of succession, to wit: (1) that of the chairman; (2) that of the second member, Enage; and (3) that of the third member (see outline above).

Garcia in May 1960, was in the third line of succession, his term of office and tenure to expire in June 1962. When he was appointed chairman in May 1960, he left that line and entered the line of succession of the chairman, with his tenure still to expire on June 1962^[g]. Therefore, upon his appointment, Visarra merely occupied the position vacated by Garcia^[h] whose fixed term of office (third member) expired on June 20, 1962.^[hh] Visarra's latter-appointment^[i] could neither affect nor extend such fixed term of office (of Garcia in the third line).

Visarra claims, however, that when Garcia was appointed chairman, he did not leave his position in the third line of succession but continued therein; so that the vacant position which he (Visarra) filled was the one left by Carag, the fixed term of which is due to expire in 1968; and that, consequently, Borra should be deemed to occupy the position left by Garcia in the third line. The flaw in the argument is that it contradicts our ruling in Republic vs. Imperial, supra. There we held that when Commissioner Vera was appointed Chairman, he left the third line of succession to enter the first, viz, that of the Chairman; and upon his assumption of the Chairmanship, his position as member became vacant . We now fail to perceive any valid reason to change our views on that point, according to which Garcia must be held to have left his line to assume the position of Chairman. Stare decisis - not mere obiter dictum.

In other words, and graphically to demonstrate the three lines of succession continuing after March 1955-as we see them:

	Incumbent	Office Term	Tenure
Chairman (9-yr. original)	Carag   Garcia Borra	June 1950 to June 1959 June 1959 to June 1968	May 1958 to June 1959 May 1960 to June 1962 Aug. 1962 to June 1968
Second Member (6-yr. original)	Perez   Brillantes	June 1947 to June 1956 June 1956 to June 1965	Dec. 1949 to June 1956 Dec. 1956 to June 1965
Third Member (3-yr. original)	Garcia   Vissara   Miraflor	June 1953 to June 1962 June 1962 to June 1971	May 1955 to May 1960 May 1960 to June 1962 Oct. 1962 to June 1971

Note: For convenience, date of appointment - not qualification - is noted here.

It is true that Visarra's appointment was extended expressly for a term of office ending June 20, 1968; but as explained in our decision of Republic vs. Imperial, such appointment could only be for a position whose term would expire in June 1962, because that was the only vacant position, inasmuch as the term due to expire in June 1968 (for the chairman) was then occupied by Chairman Garcia.^[j]

As a result of the foregoing, and to be specific, we declare: Chairman Borra occupies the position of Chairman, with a term expiring June 20, 1968, and his tenure beginning August 1962 ends on June 20, 1968^[k]; the position of Member Brillantes carries a term that expires June 20, 1965 and his tenure should end on the same date; and the term for the position of Member Miraflor expires June 1971, his tenure expiring on the same date.

It may be necessary to add that although the appointment of the chairman or of the member (subsequent to those originally appointed in the nineteen forties) is generally for a term of nine years, his tenure can not extend beyond the fixed term for the position he is supposed to occupy^[l] ; in the fixed line of succession we have heretofore indicated, in accordance with the evident intention of the pertinent Constitutional provisions.

WHEREFORE, in line with the foregoing considerations, this quo warranto proceedings should be and is hereby dismissed. No. costs.

Padilla, Labrador, and Regala, JJ., concur.

 

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^[a] 51 Off. Gaz. 1886.

^[b] Or should be considered to have began in the eyes of the law.

^[c] Except when vacancy occurs by reason of death, resignation or disability-in which case, the appointee may serve only up to the end of the term. (Republic vs. Imperial, supra.)

^[d] Hold over as de facto (1947-1949)

^[e] Nacionalista Party vs. Bautista, 47 Of. Gaz. 2356.

^[x] Held office 1947 to November, 1949 as de facto.

^[ee] Omitting other unimportant circumstances.

^[f] Rovira was holding over as de facto, the term of his office having expired June 1953.

^[z] Held office June 1953 to September, 1954 as de facto.

^[g] Garcia's appointment expressly stated that it would expire June 1962.

^[h] In fact he took his oath only on October 13, 1960, after Garcia had qualified as chairman.

^[hh] Up to the end of the term only. See footnote (c).

^[i] Fixing a term up to June 1968.

^[j] When Garcia assumed the chairmanship, he ipso facto resigned his position as member; and the appointment of Visarra to membership could only be for the unexpired balance of the. term of member (Republic vs. Imperial, supra) up to June 1962.

^[k] Notwithstanding his appointment fixed June 20, 1971 as expiration thereof.

^[l] If the vacancy is due to death, resignation or disability, the appointment can only be for the unexpired balance of the term. (Republic vs. Imperial, supra.)

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CONCURRING

BAUTISTA ANGELO, J.,

The President appointed Cesar Miraflor in 1962 a member of the Commission on Elections to fill the position left vacant by Genaro Visarra whose term expired in June, 1962, in keeping with the ruling laid down by this Court in Republic vs. Imperial.^[1] This ruling is to the effect that subsequent appointment to be made after the first members appointed in the Commission who were to hold office with a staggering difference of three years from each other as required by our Constitution can only be for the unexpired portion of the term of the predecessor of the appointee in order to prevent a President from making more than one appointment during his term of office to the end that the member may preserve and safeguard his freedom and impartiality in the performance of his duties. Thus, we declared therein that "any vacancy due to death, resignation or disability before the expiration of the term should be filled only for the unexpired balance of the term" as otherwise "the regularity of the intervals between appointments would be destroyed, and the evident purpose of the rotation (to prevent that four-year administration should appoint more than one permanent and regular Commissioner) would be frustrated."

In the deliberation of said case, and in the written opinion I submitted in connection therewith, I expressed the view that, while this purpose is plausible if only it can be carried out to the letter, because it would indeed free the members from extraneous influence and would give them an untrammelled freedom in the performance of their duties, experience however has shown that it is impracticable as it has never been observed either by the Chief Executive or by Congress. An analysis of the appointments heretofore made to fill vacancies in the membership of the Commission will bear this out. The Chief Executive, in filling the vacancies in the positions held after the members first appointed, has always extended appointments for a term of nine years, never for the unexpired period, and these appointments have always met the sanction of Congress. Only that their tenure was limited by judicial fiat to the unexpired term to conform to the spirit of the rotation system. I then concluded that if the rotation system can not be maintained because of unavoidable human factors that may supervene, such as death, resignation, or disability in any form, that system should not be allowed to stand against the clear purpose of the Constitution of giving to every subsequent appointee a term of office of nine years. But this opinion was ruled out. Hence, the President, following the ruling of the majority, extended an appointment to Miraflor as already adverted to.

But Mr. Justice Reyes, (J.B.L.) the writer of the majority opinion in the Imperial case, a dissenter in the present, advances now the theory that the appointment of the then member Gaudencio Garcia in 1960 to the post of Chairman of the Commission was null and void for being in violation of our Constitution with the result that he never left his line to pass to that of Carag and that the one who lawfully filled Carag's line was Visarra. So, he concludes, Visarra who was appointed in 1960 continued the line of Carag whose term of office will expire only in 1968. And when Borra was appointed, he filled the line vacated by Garcia in 1962, whose term will expire in 1971. Consequently, he avers that there was no vacancy to which Miraflor could have been appointed and, hence, his appointment is void. Mr. Justice Reyes predicates his opinion on the constitutional provision that a member "shall hold office for a term of nine years and may not be reappointed."

The issue raised by Mr. Justice Reyes has already been squarely presented and discussed in Nacionalista Party, et al. vs. Vera,^[2] wherein the appointment of Vicente de Vera, then Associate Commissioner, to Chairman of the Commission, was impugned as invalid on the ground that it was made in violation of our Constitution. This Court, under the pen of former Chief Justice Moran, while it held that it was not a proper subject for determination because it was raised not in a petition for quo waranto, but in one for prohibition, nevertheless, categorically stated that "the majority deems it advisable to also express its view" on the matter. And after analyzing the pertinent provisions of our Constitution,^[3] the Court said: "It must be noticed from this provision that the prohibition against reappointment comes as a continuation of the requirement that the Commissioners shall hold office for a term of nine years. This imports that the Commissioners may not be reappointed only after they have held office for nine years. Reappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all. *** It may then be said as a fair interpretation of the Constitution that reappointment may be made in favor of a Commissioner who has held office for less than nine years, provided it does not preclude the appointment of a new member every three years, and provided further that the reappointee's term does not exceed nine years in all." (Italics supplied) Elaborating further on the matter, the Court continued:

"It is maintained that the prohibition against reappointment applies not only to the Commissioner appointed for nine years, but also to those appointed for a shorter period, because the reason underlying the prohibition is equally applicable to them, the prohibition being, according to this theory, intended to prevent the Commissioners from being exposed to improper influences that are apt to be brought to bear upon those aspiring for reappointment. It is, however, doubtful whether this apparently persuasive reasoning is fully justified and supported by the wording of the Constitution. As above stated, the language of the Constitution does not warrant the interpretation that the prohibition against reappointment applies not only to Commissioners who have held office for nine years but also to those appointed for a lesser term. Upon the other hand, reappointment is not the only interest that may affect a commissioner's independence, for he may also aspire to another position in the Government that is higher and better paid, and that also may affect his independence. And it is perhaps useless to prohibit reappointment to the same office if appointment to higher and better paid position is not at the same time prohibited. This, apart from the consideration that reappointment is not altogether disastrous. A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other hope of material reward, his enthusiasm may decline as the end of his term approaches and he may even lean to abuses if there is no higher restraint in his moral character. Moral character is no doubt the most effective safeguard of independence. With moral integrity, a commissioner will be independent with or without possibility of reappointment. Without moral integrity, he will not be independent no matter how emphatic the prohibition on reappointment might be. That prohibition is sound only as to a Commissioner who has held office for nine years, because after such a long period of heavy and taxing work, it is but fair that the venerable Commissioner be given either a rest well earned or another honorable position for a change."

I am not in accord with the view that the ruling in the Vera case, supra, is not a binding precedent on the validity of Gaudencio Garcia's promotion from Associate Commissioner to Chairman of the Commission for the reason that the same only finds support in the votes of four justices because two others merely concurred in the result for, as already stated, on this issue, the Court clearly stated that "the majority deems it advisable to also express its views," and the justices who concurred in the result did not elaborate on how they arrived at that conclusion. Moreover, to hold that the promotion of an Associate Commissioner to Chairman is banned by the Constitution merely by judicial fiat would be to relegate a member forever to his position as such without hope of enjoying the privileges incident to the chairmanship while giving a premium to an outsider who may be less deserving except probably his political ascendancy because of his lack of experience on the mechanic of that delicate and important position. Be that as it may, we now re-affirm that opinion which to us appears just, fair and sound. Its effect is to stimulate hard work, greater zeal and increased efficiency for a member in the hope that his efforts would someday be rewarded with a promotion. The contrary would relegate him to apathy, indifference, hopelessness and inaction. It is never a good policy to stultify one's legitimate ambition to betterment and progress.

I am also not in accord with the view that the appointment of Associate Commissioner Garcia to Chairman of the Commission constitutes an increase in salary which is prohibited by the Constitution which decrees that the salaries of the members "shall be neither increased nor diminished during their term of office." This prohibition can not be stretched to mean that if an Associate Commissioner is appointed to Chairman of the Commission he cannot be given the salary prescribed for the latter. The prohibition merely means that during their incumbency their salaries can neither be increased nor diminished by Congress to prevent a situation whereby they may have to lobby for such increase near Congress thereby impairing their freedom and independence. As aptly expressed by Mr. Justice Reyes, "The plain purpose of (this safeguard) is that the Commissioners, once appointed and confirmed, should be free to act as their conscience demands, without fear of retaliation or hope of reward; that they should never feel the inducement of either the stick or the carrot. For only the man who has nothing to fear and nothing to expect can be considered truly independent." If the appointment of an Associate Commissioner to Chairman of the Commission is legally feasible as abovestated, no plausible reason is seen why the reception by him of the salary prescribed for the latter position would be unconstitutional.

Much stress is laid by Mr. Justice Barrera that if the appointment of Miraflor is sanctioned the effect would be to give to the President the privilege of appointing two members, if not more, during his term of office which is contrary to the intent of the Constitution. But who should be blamed if such predicament should happen. Can it be helped if such is the inexorable rule of nature. This is the danger I envisioned when in the Imperial case I advocated the disregard of the staggering term in the commission membership and the adoption of the rule as expressed in our Constitution that subsequent appointments be made always for a full term of nine years. If that rule is adopted there would be less occasion for the danger now dreaded by the minority to happen, while we would strengthen the security of tenure of the incumbent. But my opinion was overruled by the majority and the same is now the law of the case. We have no other alternative than to abide by it.

Since the appointment of Associate Commissioner Garcia to Chairman of the Commission is valid, and the President in appointing Cesar Miraflor member of the Commission, vice member Genaro Visarra, merely followed the ruling of this Court in the Imperial case, it is now unfair to declare that he acted improvidently in doing so. For these reasons, I vote with the majority.

Bautista Angelo, J., concur.

 

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^[1] 51 Off. Gaz. 1886,

^[2] 47 Off. Gaz., 2375.

^[3]"There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be re-appointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution."

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