[G.R. No. 131429. August 4, 1999.

OSCAR BERMUDEZ, ARTURO A. LLOBRERA and CLAUDIO L. DAYAON, Petitioners, v. EXECUTIVE

DECISION

VITUG, J.:

The validity and legality of the appointment of respondent Conrado Quiaoit to the post of Provincial Prosecutor of
Tarlac by then President Fidel V. Ramos is assailed in this petition for review on certiorari on a pure question of law
which prays for the reversal of the Order, 1 dated 20 October 1997, of the Regional Trial Court (Branch 63) of Tarlac,
Tarlac, dismissing the petition for prohibition and/or injunction and mandamus, with a prayer for the issuance of a writ
of injunction/temporary restraining order, instituted by herein petitioners.

The occurrence of a vacancy in the Office of the Provincial Prosecutor of Tarlac impelled the main contestants in this
case, petitioner Oscar Bermudez and respondent Conrado Quiaoit, to take contrasting views on the proper
interpretation of a provision in the 1987 Revised Administrative Code. Petitioner Oscar Bermudez, the First Assistant
Provincial Prosecutor of Tarlac and Officer-In-Charge of the Office of the Provincial Prosecutor, was a recommendee
2 of then Justice Secretary Teofisto Guingona, Jr., for the position of Provincial Prosecutor. Conrado Quiaoit, on the
other hand, would appear to have had the support of then Representative Jose Yap of the Second Legislative District
of Tarlac. 3 On 30 June 1997, Quiaoit emerged the victor when he was appointed by President Ramos to the coveted
office. Quiaoit received a certified xerox copy of his appointment and, on 21 July 1997, took his oath of office before
Executive Judge Angel Parazo of the Regional Trial Court (Branch 65) of Tarlac, Tarlac. On 23 July 1997, Quiaoit
assumed office and immediately informed the President, as well as the Secretary of Justice and the Civil Service
Commission, of that assumption. Bermudez refused to vacate the Office of Provincial Prosecutor claiming that the
original copy of Quiaoit’s appointment had not yet been released by the Secretary of Justice. 4 Quiaoit, nonetheless,
performed the functions and duties of the Office of the Provincial Prosecutor by issuing office orders and
memoranda, signing resolutions on preliminary investigations, and filing several informations before the courts.
Quiaoit had since been regularly receiving the salary, RATA and other emoluments of the office.

On 17 September 1997, Bermudez and Quiaoit were summoned to Manila by Justice Secretary Guingona. The three
met at the Department of Justice and, following the conference, Bermudez was ordered to wind up his cases until 15
October 1997 and to turn-over the contested office to Quiaoit the next day.

In his First Indorsement, dated 22 September 1997, for the Chief State prosecutor, Assistant Chief State Prosecutor
Nilo Mariano transmitted the original copy of Quiaoit’s appointment to the Regional State Prosecutor Carlos de Leon,
Region III, at San Fernando, Pampanga. In turn, in his Second Indorsement, dated 02 October 1997, Regional State
Prosecutor de Leon forwarded to Quiaoit said original copy of his appointment. On the basis of the transmittal letter
of Regional State Prosecutor de Leon, Quiaoit, as directed, again so assumed office on 16 October 1997. On even
date, Bermudez was detailed at the Office of the Regional State Prosecutor, Region III, in San Fernando, Pampanga.

In the meantime, on 10 October 1997, bermudez together with his co-petitioners Arturo Llobrera and Claudio
Dayaon, the Second Assistant Provincial Prosecutor and the Fourth Assistant Provincial Prosecutor of Tarlac,
respectively, filed with the Regional Trial Court of Tarlac, a petition for prohibition and/or injunction, and mandamus,
with a prayer for the issuance of a writ of injunction/temporary restraining order, against herein respondents,
challenging the appointment of Quiaoit primarily on the ground that the appointment lacks the recommendation of the
Secretary of Justice prescribed under the Revised Administrative Code of 1987. After hearing, the trial court
considered the petition submitted for resolution and, in due time, issued its now assailed order dismissing the
petition. The subsequent move by petitioners to have the order reconsidered met with a denial.

Hence, the instant recourse.

The core issue for consideration is whether or not the absence of a recommendation of the Secretary of Justice to
the President can be held fatal to the appointment of respondent Conrado Quiaoit. This question would, in turn, pivot
on the proper understanding of the provision of the Revised Administrative Code of 1987 (Book IV, Title III, Chapter
II, Section 9) to the effect that —

"All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation
of the Secretary."cralaw virtua1aw library

Petitioners contend that an appointment of a provincial prosecutor mandatorily requires a prior recommendation of
the Secretary of Justice endorsing the intended appointment citing, by analogy, the case of San Juan v. CSC 5
where the Court held:jgc:chanrobles.com.ph

". . . The DBM may appoint only from the list of qualified recommendees nominated by the Governor. If none is
qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements
and ask for new recommendees who have the necessary eligibilities and qualifications.

The Provincial Budget Officer (PBO) is expected to synchronize his work with DBM." 6 ( Emphasis supplied.)

Insisting on the application of San Juan, petitioners call attention to the tenor of Executive Order No. 112 — 7

"SECTION 1. All budget officers of provinces, cities and municipalities shall be appointed henceforth by the Minister
of Budget of Management upon recommendation of the local chief executive concerned . . ." —

that, they claim, can be likened to the aforequoted provision of the Revised Administrative Code of 1987.
Respondents argue differently.

The legislative intent is, of course, primordial. There is no hard-and-fast rule in ascertaining whether the language in
a statute should be considered mandatory or directory, and the application of a ruling in one particular instance may
not necessarily be apt in another 8 for each must be determined on the basis of the specific law in issue and the
peculiar circumstances attendant to it. More often than not, the problem, in the final analysis, is firmed up and
addressed on a case-to-case basis. The nature, structure and aim of the law itself is often resorted to in looking at
the legislative intent. Generally, it is said that if no consequential rights or liabilities depend on it and no injury can
result from ignoring it, and that the purpose of the legislature can be accomplished in a manner other than that
prescribed when substantially the same results can be obtained, then the statute should be regarded merely as
directory, rather than as mandatory, in character. 9

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. Appointment necessarily calls for an exercise of discretion
on the part of the appointing authority.

In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, reiterated in Flores v. Drilon, this Court has
held "The power to appoint is, in essence, discretionary. The appointing power 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. It is a prerogative of the appointing power . . ."

Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the power
of appointment, discretion is an integral part thereof.

When the Constitution or the law clothes the President 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. It should be
here pertinent to state that the President 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, 19 as and when the former deems it to be appropriate. Expressed in another
way, the President has the power to assume directly the functions of an executive department, bureau and office. It
can accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials under
him or altogether ignore their recommendations.

It is the considered view of the Court, given the above disquisition, that the phrase "upon recommendation of the
Secretary," found in Section 9, Chapter II, Title III, Book IV of the Revised Administrative Code, should be interpreted,
as it is normally so understood, to be a mere advise, 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 President, 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.

The doctrine in San Juan, relied upon by petitioners, is tangential. While the tenor of the legal provision in Executive
Order No. 112 has some similarity with the provision in the 1987 Administrative Code in question, it is to be pointed
out, however, that San Juan, 24 in construing the law, has distinctively given stress to the constitutional mandate on
local autonomy; thus:jgc:chanrobles.com.ph

"The issue before the Court is not limited to the validity of the appointment of one Provincial Budget Officer. The tug
of war between the Secretary of Budget and Management and the Governor of the premier province of Rizal over a
seemingly innocuous position involves the application of a most important constitutional policy and principle, that of
local autonomy. We have to obey the clear mandate on local autonomy. Where a law is capable of two
interpretations, one in favor of centralized power in Malacañang and the other beneficial to local autonomy, the
scales must be weighed in favor of autonomy.

x       x       x

"When the Civil Service Commission interpreted the recommending power of the Provincial Governor as purely
directory, it went against the letter and spirit of the constitutional provisions on local autonomy. If the DBM Secretary
jealously hoards the entirety of budgetary powers and ignores the right of local governments to develop self-reliance
and resoluteness in the handling of their own funds, the goal of meaningful local autonomy is frustrated and set
back."25cralaw:red

The Court there has explained that the President merely exercises general supervision over local government units
and local officials; 26 hence, in the appointment of a Provincial Budget Officer, the executive department, through the
Secretary of Budget and Management, indeed had to share the questioned power with the local
government.chanrobles.com : virtual law library

In the instant case, the recommendation of the Secretary of Justice and the appointment of the President are acts of
the Executive Department itself, and there is no sharing of power to speak of, the latter being deemed for all intents
and purposes as being merely an extension of the personality of the President.

WHEREFORE, the petition is DENIED. No costs.

SO ORDERED.