566 Phil. 516
AZCUNA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the Revised Rules of Court are the May 30, 2003 Decision[1] and August 7, 2003 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 74136, which dismissed the quo warranto petition filed against respondent for assuming the office of the General Manager of Philippine Tourism Authority (PTA).
On the same day, petitioner took his oath of office before Associate Justice Teodoro P. Regino of the Court of Appeals.[4] For ceremonial purposes, he again took his oath on December 12, 2000 before the President at Malacañang.
Office of the President
of the Philippines
Malacañang7 November 2000
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed GENERAL MANAGER, PHILIPPINE TOURISM AUTHORITY vice Angelito T. Banayo.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office.(Sgd) Joseph Ejercito Estrada
MR. NIXON KUA
Thru: The Office of the General Manager
Philippine Tourism Authority
City of Manila[3]
Thereafter, respondent took his oath of office and assumed the position.
Office of the President
of the Philippines
MalacañangNovember 12, 2002
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed GENERAL MANAGER/CHIEF EXECUTIVE OFFICER, PHILIPPINE TOURISM AUTHORITY (PTA), DEPARTMENT OF TOURISM (DOT), for a term of six (6) years expiring on October 3, 2008, vice Nixon T. Kua.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office.(Sgd) Gloria Macapagal-Arroyo
Hon. ROBERT DEAN S. BARBERS
Thru: The Secretary
Department of Tourism
DOT Building, T.F. Valencia Circle
Ermita, Manila[6]
On the other hand, respondent countered that he was validly appointed as PTA General Manager since the position was legally vacant at the time of his appointment. He averred that the term of office of petitioner had already expired at the time, the latter being merely appointed for the duration of the unexpired portion of the term of his predecessor. In support thereof, respondent stated that while Sec. 23-A of P.D. No. 564 clearly specifies the duration of the term of office of the PTA General Manager it is silent as to the date of the term’s commencement and termination; hence, it is understood to start from the date of the first appointment and end after the expiration of the period. Following this argument, he claimed that the term of the persons subsequently appointed to the office of the PTA General Manager is to be reckoned from the date when P.D. No. 1400 took effect, which was on October 3, 1978, since P.D. No. 564 does not contain any provision regarding its duration, thus:
- OUSTING AND EXCLUDING respondent Robert Dean S. Barbers from the position of PTA General Manager which he unlawfully holds, restoring petitioner to the possession thereof, and issuing a final injunction against said respondent under Section 9, Rule 58, perpetually restraining respondent from usurping the position of PTA General Manager;
- DECLARING that petitioner Nixon T. Kua is the one lawfully entitled to hold the aforesaid position; and
- ORDERING respondent to pay petitioner the following damages: (1) Actual damages in the amount of One Thousand Three Hundred Fifty Eight Pesos (P1,358.00) per day from the time petitioner was unlawfully deprived of his office until he has reassumed the same; (2) Moral damages in the amount of Five Hundred Thousand Pesos (P500,000.00), and (3) Attorney’s fees and litigation expenses in the amount of P500,000.00.[12]
1st Term | 3 October 1978 - 2 October 1984 |
2nd Term | 3 October 1984 - 2 October 1990 |
3rd Term | 3 October 1990 - 2 October 1996 |
4th Term | 3 October 1996 - 2 October 2002 |
5th Term | 3 October 2002 - 2 October 2008 |
WHEREFORE, for want of any leg in law to stand on, the instant petition for quo warranto is DISMISSED. No pronouncement as to costs.In finding for respondent, the Court of Appeals reasoned:
SO ORDERED.[14]
Under P.D. No. 1400, taken in relation to P.D. No. 564, the terms of office of the general manager and the part-time members were uniformly fixed at six (6) years but following the initial staggered set-up, their terms have been made rotational in the sense that they were not to end at the same time, and while the appointments of the three (3) part-time board members have been mandated to be made at an interval of two (2) years, the appointment of the general manager has been designated to coincide with one of the three (3) part-time members, particularly the one whose initial term was four (4) years. To elucidate, the terms of office of the first set of board members, exclusive of the ex officio chairman, who were appointed in 1974 were to expire in this order:Petitioner moved to reconsider the Decision.[16] He insisted that Sections 15 and 16 of P.D. No. 564 apply only to the three non-ex officio part-time members of the PTA Board while Sec. 23-A of the same decree governs the term of office of the PTA General Manager. Petitioner refused to concede to the Court of Appeals’ interpretation because, according to him, the logical consequence is that the term of office of the DOT Secretary, who is also an ex officio member of the PTA Board, would have to be governed by Sections 15 and 16 of P.D. No. 564. He stressed that since the positions held by the DOT Secretary and General Manager in the PTA are practically the same, in the sense that both are ex officio members of the PTA Board, the court must not distinguish or make an interpretation that does not appear or is not intended or reflected in the very language of the statute.
Indefinite - General Manager1980 - 1st part-time member (initial
6-year term)1978 - 2nd part-time member (initial
4-year term)1976 - 3rd part-time member (initial
2-year term)
But after 1978, with the term of the general manager having been pruned down to six (6) years from that same year, the expiration of his fixed term was to be factored in along with that of the second set of part-time members, all of whom by then already had uniform six (6)-year terms, in this way:
Indefinite - General Manager1986 - 1st part-time member1984 -
General Manager and 2nd part-
time member1982 - 3rd part-time member
Every two (2) years thereafter, new appointments were to be made, with the general manager being appointed together with a part-time member (the second part-time member); hence, for the third, fourth and fifth sets of appointees, the sequence of the expiration of their respective terms would be as follows:
(a) Third set: - General Manager1992 - 1st part-time member1990 - General Manager and 2nd part-
time member1988 - 3rd part-time member(b) Fourth set: 1998 -1st part-time member 1996 -General Manager and 2nd part-
time member1994 -3rd part-time member (c) Fifth set: 2004 -1st part-time member 2002 -General Manager and 2nd part-
time member2000 -3rd part-time member
The coincidence of the terms of the general manager and the second part-time member of the board could have been calculated to assure the continual presence of a quorum, together with the concurrent chairman, and to forestall the impairment of the power of the board to execute the functions of the Authority under Section 18 of P.D. No. 564 x x x.
And the provision of Section 16 of the same Decree x x x insures no break in the six (6)-year terms of the general manager and each of the part-time members of the board.
These features of P.D. No. 564, as amended by P.D. No. 1400, fit to-a-tee into the x x x pronouncement of the Supreme Court in Republic vs. Imperial [96 Phil. 770 (1955). Cf. Gaminde vs. COA, 401 Phil. 77 (2000)] x x x which is applicable four-square to the case at bar, contrary to the stance of the petitioner.
Examining the appointment of petitioner Kua in the case before us, we readily see that it is expressly tied up to the appointment of Angelito T. Banayo, his predecessor x x x.
In light of x x x Sections 15 and 16 of P.D. No. 546, we are called upon to determine when Banayo’s term had begun and ended to be able to decide when his successor’s, i.e., petitioner’s[,] own term commenced and expired.
Although the parties, particularly the respondent, made reference to previous appointments to the position of PTA general manager, neither of them submitted authenticated copies thereof. Hence, to give us a complete picture of the situation, we required the Secretary of Tourism, being the PTA chairman, to furnish us the desired documents. From the List of Succession, Date of Appointment and Tenure of the General Manager of PTA submitted by the Secretary, we found out that no permanent appointment of a general manager had been made prior to April 6, 1990.
On August 20, 1974, Col. Rodolfo Cacdac was merely designated acting general manager by President Marcos; and he held office as such until July 19, 1978.
On July 20, 1978, Eng’r. Bernardo Vergara was likewise designated acting general manager also by President Marcos; and he manned the post until April 6, 1986.
On April 7, 1986, Ramon P. Binamira was designated, this time by Tourism Minister Jose Antonio U. Gonzalez, but his designation was, by its nature, only temporary and eventually recalled on January 4, 1990 by Her Excellency, Corazon C. Aquino, who ascended to the presidency by virtue of the EDSA I people power revolution, and who designated Tourism Secretary Peter D. Garrucho as “concurrent General Manager” until she could “appoint a person to serve in the said office in a permanent capacity.”
It was only on April 6, 1990 that President Aquino appointed Jose A. Capistrano, Jr. permanent general manager. Consequently, this date – April 6, 1990 – should be the reckoning point in determining the first six (6)-year term of the office of the PTA general manager. It was to end on April 5, 1996.
The reckoning point cannot be October 3, 1978, the date of effectivity of P.D. No. 1400, following its publication in the Official Gazette on October 2, 1978, pursuant to the decision of the Supreme Court in Tañada vs. Tuvera, as posited by the respondent, because no permanent appointment to the position had been made prior to April 6, 1990, and the law (P.D. No. 1400) cannot operate in a vacuum or before the factual situation it is meant to govern has arisen.
But Capistrano did not exhaust his full six (6)-year term as he stayed in the position only until July 31, 1992.
On July 8, 1992, President Fidel Ramos appointed Eduardo T. Joaquin who succeeded Capistrano on July 31, 1992.
The unexpired portion of Capistrano’s term assumed by Joaquin was to end on April 5, 1996 but Joaquin remained as PTA general manager in a hold-over capacity until June 29, 1998, by virtue of Sec. 23-A of P.D. No. 564, as amended by P.D. No. 1400.
On June 30, 1998, President Estrada appointed Angelito T. Banayo whose six (6)-year term to be reckoned from April 6, 1996, the end of the term of his predecessor, including the period spanned by Joaquin’s hold-over tenure, was to expire on April 5, 2002, conformably with Section 15 of P.D. No. 564 which commands that, “a successor to a member whose term has expired shall be appointed for the full term of six years from the date of expiration of the term for which his predecessor was appointed.”
Accordingly, when petitioner Nixon T. Kua was appointed on November 7, 2000, the unexpired portion of Banayo’s term which he assumed ended on April 5, 2002 in consonance with Section 16 of the same P.D. No. 564 which directs that any member appointed to fill a vacancy “prior to the expiration of the term for which his predecessor was appointed shall serve only for the unexpired portion of the term of his predecessor.”
The position, therefore, became vacant on April 6, 2002. That the petitioner continued to sit in the position and even afterwards could not, as it did not, bar its being filled up by a new appointee as his prolonged stay was already on borrowed time as a mere hold-over general manager, pursuant to Section 23-A of the same P.D. No. 564, as added by P.D. No. 1400, which states that, “upon the expiration of his (general manager) term, he shall serve as such until his successor shall have been appointed and qualified.” Hence, respondent’s appointment on November 12, 2002 cannot but be valid as the position was then already very much vacant and the petitioner had no more security or guarantee of tenure that could be transgressed, or even merely to speak of. But respondent’s term is up to April 5, 2008 only, and not October 3, 2008 as stated in his appointment.[15]
SEC. 15. Term of Office. – The term of office of the part-time members of the Board shall be six years. Of the part-time members first appointed, one shall hold office for six years, one for four years, and the last one for two years. A successor to a member whose term has expired shall be appointed for the full term of six years from the date of expiration of the term for which his predecessor was appointed.Later, on June 5, 1978, P.D. No. 564 was amended by P.D. No. 1400. Among the modifications introduced was the addition of Section 23-A to the existing decree, stating:
SEC. 16. Vacancy Before Expiration of Term. – Any member appointed to fill a vacancy in the Board occurring prior to the expiration of the term for which his predecessor was appointed shall serve only for the unexpired portion of the term of his predecessor.
Section 23-A. General Manager – Appointment and Tenure. – The General Manager shall be appointed by the President of the Philippines and shall serve for a term of six (6) years unless sooner removed for cause; Provided, That upon the expiration of his term, he shall serve as such until his successor shall have been appointed and qualified.Essentially, the bottom line of the issues raised by petitioner is whether Sections 15 and 16 of P.D. No. 564 should be read in relation to Sec. 23-A such that the PTA General Manager may also be required to hold office only for the unexpired portion of the term of his predecessor, if appointed to fill a vacancy in the Board which occurred prior to the expiration of the latter’s term.
An amended act is ordinarily to be construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted in its stead; or, as frequently stated by the courts, so far as regards any action after the adoption of the amendment, [it is] as if the statute had been originally enacted in its amended form. The amendment becomes a part of the original statute as if it had always been contained therein, unless such amendment involves the abrogation of contractual relations between the state and others. Where an amendment leaves certain portions of the original act unchanged, such portions are continued in force, with the same meaning and effect they had before the amendment x x x .[24]The Court is, therefore, in full accord with the ruling of the Court of Appeals that the provisions of P.D. No. 1400, particularly Sec. 2 thereof which added Sec. 23-A, should be considered as part and parcel of P.D. No. 564 as if it had always been contained in the latter at the time it took effect. On the other hand, the portions of the original act left unchanged by the succeeding law are continued in force, bearing the same meaning and effect that they had before the amendment.
SEC. 17. Per Diems. – Unless otherwise fixed by the President of the Philippines, the members of the Board shall receive for every meeting attended as per diem of not to exceed two hundred pesos (P200); Provided, That such per diems shall not exceed one thousand pesos (P1,000) during any month for each member. Members of the Board shall be reimbursed by the Authority for actual expenses (including traveling and subsistence expenses) incurred by them in the performance of their duties for the Authority as may be specifically authorized by the Board.Upon analysis of the afore-quoted sections, specifically of the emphasized words and phrases, one obvious fact is manifest: that Sections 17 to 21 of P.D. No. 564 speak of “member/s” in a generic sense; no particular allusion whatsoever is made on the DOT Secretary, the General Manager or the three part-time members of the PTA Board. Said provisions equally apply to them all without distinction or qualification. Necessarily, the logical consequence of this would be to construe Sec. 16 of P.D. No. 564 in light of the company of words where it is found, that is, Sections 17 to 21 thereof. Perforce, the words “any member” mentioned in Sec. 16 should be understood to refer not just to the part-time members of the PTA Board but to its General Manager as well.
SEC. 18. Quorum; Effect of Vacancies. – The presence of three members of the Board, including the Chairman or the Vice Chairman, shall constitute a quorum for the transaction of the business of the Board.
Vacancies in the Board, as long as there shall be three members in the office, shall not impair the powers of the Board to execute the functions of the Authority.
SEC. 19. Withdrawal from the Meeting of a Member Having Prohibited Interest. – Whenever a member of the Board has a personal interest of any sort on a matter before the Board, or any of his business associates, or any of his relatives within the fourth civil degree of consanguinity or second degree of affinity has such interest, he shall not participate in the discussion or resolution of the matter and must retire from the meeting during the deliberations thereon. After the Board has resolved the matter, the fact that the member concerned or any of his business associate, or his relatives within the prohibited degrees has a personal interest in it, is to be made available to the public and the minutes of the meeting shall note the withdrawal of the member concerned.
SEC. 20. Removal or Suspension for Cause. – A member of the Board may be suspended or removed by the President for cause, such as: mismanagement, grave abuse of discretion, infidelity in the conduct of fiduciary relations, gross negligence in the performance of duties, dishonesty, corruption, or any act involving moral turpitude.
SEC. 21. Meetings of the Board. – The Board shall meet as frequently as necessary to discharge its duties and responsibility properly, but shall meet regularly at least once a month. The Board shall be convoked by the Chairman or upon the written request of a majority of its members. Except when otherwise provided for in this Decree, the vote of a majority of the members constituting a quorum shall be sufficient for the adoption of any rule, resolution, decision or any act of the Board. (Emphasis ours)[25]
SEC. 2. Section 23 is hereby amended by adding a new Section to read as follows:[9] Sections 15 and 16 of P.D. No. 564 provide:
"Section 23-A. General Manager – Appointment and Tenure. – The General Manager shall be appointed by the President of the Philippines and shall serve for a term of six (6) years unless sooner removed for cause; Provided, That upon the expiration of his term, he shall serve as such until his successor shall have been appointed and qualified."