G.R. No. 192926: November 15, 2011



On 28 May 2010, President Gloria Macapagal-Arroyo (President Arroyo) issued EO 883 granting the rank of CESO III or higher to officers and employees "occupying legal positions in the government executive service who have obtained graduate degrees in law and successfully passed the bar examinations" (Section 1). EO 883 invoked the granting of CESO "rank to government personnel who successfully complete certain graduate programs, such as Masters in Public Safety Administration (MPSA) and Masters in National Security Administration (MNSA)" as basis for the granting of CESO rank to government lawyers in the executive service.

On 2 June 2010, the CESB issued Resolution No. 870 finding no legal impediment for the President to vest CESO rank to executive officials during the periods covered by the constitutional ban on midnight appointment and statutory ban on pre-election appointment.
The CESB subsequently endorsed to President Arroyo its recommendation to vest CESO rank to 13 officials from various departments and agencies, including three members of the CESB who signed CESB Resolution No. 870.7 On 10 June 2010, President Arroyo appointed the 13 officials to varying CESO ranks.8

On 30 July 2010, President Benigno S. Aquino III (President Aquino) issued EO 3 expressly revoking EO 883 (Section 1) and "[a]ll x x x administrative orders, proclamations, rules and regulations" that conflict with EO 3 (Section 2).

On 4 August 2010, petitioner Atty. Elias Omar A. Sana (petitioner) filed the present petition, contending that EO 883 and the subsequent appointment of the 13 executive officials to CESO rank are void for violating the constitutional ban on midnight appointment under Section 15, Article VII of the Constitution.

In its Comment, the CESB prays for the dismissal of the petition as the issue it raises was rendered moot by EO 3s revocation of EO 883. Alternatively, the CESB defends the vesting of CESO rank to the 13 officials based on an opinion given by Atty. Ferdinand Rafanan (Rafanan), head of the Commission on Elections (COMELEC) Law Department,12 that "the appointment to a CES[O] rank is not equivalent to an appointment to an office since the latter entails the conferment of an authority to exercise the functions of an office whereas the former is merely a completion of a previous appointment."

ISSUE: Whether the issue has become moot already.

HELD: We dismiss the petition on the threshold ground of mootness.

The petition seeks a review of the constitutionality of EO 883 and CESB Resolution No. 870 for being repugnant to Section 15, Article VII of the Constitution. At the time this petition was filed, however, President Aquino had already issued EO 3 revoking EO 883 expressly (under Section 1) and CESB Resolution No. 870 impliedly (under Section 2). EO 883 and CESB Resolution No. 870 having ceased to have any force and effect, the Court finds no reason to reach the merits of the petition and pass upon these issuances validity. To do so would transgress the requirement of case and controversy as precondition for the Courts exercise of judicial review.

True, this Court had relaxed the case and controversy requirement to resolve moot issues. In those instances, however, the issues presented were grounded on peculiar set of facts giving rise to important constitutional questions capable of repetition yet evading review or indicating intent on the part of potential or actual parties to place a constitutional question beyond the ambit of judicial review by performing acts rendering moot an incipient or pending justiciable controversy.

These factors do not obtain here. The question whether an appointment to a CESO rank of an executive official amounts to an "appointment" for purposes of the constitutional ban on midnight appointment, while potentially recurring, holds no certainty of evading judicial review as the question can be decided even beyond the appointments-ban period under Section 15, Article VII of the Constitution.