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635 Phil. 568


[ G.R. No. 176278, June 25, 2010 ]




At issue is the power of Congress to limit the President's prerogative to nominate ambassadors by legislating age qualifications despite the constitutional rule limiting Congress' role in the appointment of ambassadors to the Commission on Appointments' confirmation of nominees.[1] However, for lack of a case or controversy grounded on petitioner's lack of capacity to sue and mootness,[2] we dismiss the petition without reaching the merits, deferring for another day the resolution of the question raised, novel and fundamental it may be.

Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer, filed this original action for the writ of certiorari to invalidate President Gloria Macapagal-Arroyo's nomination of respondent former Chief Justice Hilario G. Davide, Jr. (respondent Davide) as Permanent Representative to the United Nations (UN) for violation of Section 23 of Republic Act No. 7157 (RA 7157), the Philippine Foreign Service Act of 1991. Petitioner argues that respondent Davide's age at that time of his nomination in March 2006, 70, disqualifies him from holding his post. Petitioner grounds his argument on Section 23 of RA 7157 pegging the mandatory retirement age of all officers and employees of the Department of Foreign Affairs (DFA) at 65.[3] Petitioner theorizes that Section 23 imposes an absolute rule for all DFA employees, career or non-career; thus, respondent Davide's entry into the DFA ranks discriminates against the rest of the DFA officials and employees.

In their separate Comments, respondent Davide, the Office of the President, and the Secretary of Foreign Affairs (respondents) raise threshold issues against the petition. First, they question petitioner's standing to bring this suit because of his indefinite suspension from the practice of law.[4] Second, the Office of the President and the Secretary of Foreign Affairs (public respondents) argue that neither petitioner's citizenship nor his taxpayer status vests him with standing to question respondent Davide's appointment because petitioner remains without personal and substantial interest in the outcome of a suit which does not involve the taxing power of the state or the illegal disbursement of public funds. Third, public respondents question the propriety of this petition, contending that this suit is in truth a petition for quo warranto which can only be filed by a contender for the office in question.

On the eligibility of respondent Davide, respondents counter that Section 23's mandated retirement age applies only to career diplomats, excluding from its ambit non-career appointees such as respondent Davide.

The petition presents no case or controversy for petitioner's lack of capacity to sue and mootness.

First. Petitioner's citizenship and taxpayer status do not clothe him with standing to bring this suit. We have granted access to citizen's suits on the narrowest of ground: when they raise issues of "transcendental" importance calling for urgent resolution.[5] Three factors are relevant in our determination to allow third party suits so we can reach and resolve the merits of the crucial issues raised - the character of funds or assets involved in the controversy, a clear disregard of constitutional or statutory prohibition, and the lack of any other party with a more direct and specific interest to bring the suit.[6] None of petitioner's allegations comes close to any of these parameters. Indeed, implicit in a petition seeking a judicial interpretation of a statutory provision on the retirement of government personnel occasioned by its seemingly ambiguous crafting is the admission that a "clear disregard of constitutional or statutory prohibition" is absent. Further, the DFA is not devoid of personnel with "more direct and specific interest to bring the suit." Career ambassadors forced to leave the service at the mandated retirement age unquestionably hold interest far more substantial and personal than petitioner's generalized interest as a citizen in ensuring enforcement of the law.

The same conclusion holds true for petitioner's invocation of his taxpayer status. Taxpayers' contributions to the state's coffers entitle them to question appropriations for expenditures which are claimed to be unconstitutional or illegal.[7] However, the salaries and benefits respondent Davide received commensurate to his diplomatic rank are fixed by law and other executive issuances, the funding for which was included in the appropriations for the DFA's total expenditures contained in the annual budgets Congress passed since respondent Davide's nomination. Having assumed office under color of authority (appointment), respondent Davide is at least a de facto officer entitled to draw salary,[8] negating petitioner's claim of "illegal expenditure of scarce public funds."[9]

Second. An incapacity to bring legal actions peculiar to petitioner also obtains. Petitioner's suspension from the practice of law bars him from performing "any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience."[10] Certainly, preparing a petition raising carefully crafted arguments on equal protection grounds and employing highly legalistic rules of statutory construction to parse Section 23 of RA 7157 falls within the proscribed conduct.

Third. A supervening event has rendered this case academic and the relief prayed for moot. Respondent Davide resigned his post at the UN on 1 April 2010.

WHEREFORE, we DISMISS the petition.


Corona, C.J., Carpio Morales, Velasco, Jr., Nachura, Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, and Mendoza, JJ., concur.
Brion, J., on leave.

[1] Section 16 (1), Article VII of the 1987 Constitution provides: "The President shall nominate and, with the consent of the Commission on Appointments, appoint x x x ambassadors, other public ministers and consuls x x x." The following comment on the interaction of the constitutional spheres of power of the President, Senate (the Commission on Appointments in this jurisdiction), and Congress in the nomination and confirmation process under the US Constitution's Appointments Clause, the normative model of the first sentence of Section 16 (1), Article VII of the 1987 Constitution, is instructive:

The Constitution assigns the power of nomination for a confirmation appointment to the President alone, and it allocates the power of confirmation appointments to the President together with the Senate. Congress can pass laws x x x to help the President and Senate carry out those functions, such as establishing an agency to help identify and evaluate potential nominees. But x x x Congress cannot require that the President limit his nominees to a specific group of individuals named by someone else, or constrain appointments to people who meet a particular set of qualifications, for confirmation appointments. (Hanah Metchis Volokh, The Two Appointments Clauses: Statutory Qualifications For Federal Officers, 10 U. Pa. J. Const. L. 745, 763 [2007]) (internal citations omitted; emphasis supplied).

The President's exclusive power to nominate ambassadors is complimented by a subsidiary doctrine treating ambassadorial selections as "based on the special trust and confidence" of the President (Santos v. Macaraig, G.R. No. 94070, 10 April 1992, 208 SCRA 74, 84).

[2] Prescinding from Section 5, Article VIII of the 1987 Constitution limiting this Court's jurisdiction to "cases."

[3] Section 23 provides: "Compulsory Retirements. - All officers and employees of the Department who have reached the age of sixty-five (65) shall be compulsorily and automatically retired from the Service: Provided, however, That all incumbent non-career chiefs of mission who are seventy (70) years old and above shall continue to hold office until June 30, 1992 unless sooner removed by the appointing authority. Non-career appointees who shall serve beyond the age of sixty-five (65) years shall not be entitled to retirement benefits."

[4] Imposed in Estrada v. Sandiganbayan, 462 Phil. 135 (2003).

[5] Kilosbayan v. Morato, 320 Phil. 171, 186 (1995).

[6] Francisco v. House of Representatives, 460 Phil. 838, 899 (2003) citing Kilosbayan v. Guingona, G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring).

[7] See e.g. Pascual v. Secretary of Public Works, 110 Phil. 331 (1960) (involving the constitutionality of Republic Act No. 920 appropriating funds for public works); Sanidad v. COMELEC, No. L-44640, 12 October 1976, 73 SCRA 333 (concerning the constitutionality of presidential decrees calling for the holding of a national referendum on constitutional amendments and appropriating funds for the purpose).

[8] See Malaluan v. COMELEC, 324 Phil. 676, 696-697 (1996).

[9] Rollo, p. 7.

[10] Cayetano v. Monsod, G.R. No. 100113, 3 September 1991, 201 SCRA 210, 214.

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