Appointment made to vacant office only
An appointment can be made only to a vacant office. An appointment cannot be
made to an occupied office. The incumbent must first be legally removed, or
his appointment validly terminated, before one could be validly installed to
succeed him.[1]
To illustrate: in Lacson v. Romero,[58] Antonio Lacson (Lacson) occupied the post of provincial fiscal of
Negros Oriental. He was later nominated and confirmed as provincial fiscal of
Tarlac. The President nominated and the Commission on Appointments confirmed
Honorio Romero (Romero) as provincial fiscal of Negros Oriental as
Lacson’s replacement. Romero took his oath of office, but Lacson neither
accepted the appointment nor assumed office as provincial fiscal of Tarlac.
The Supreme Court ruled that Lacson remained as provincial fiscal of Negros Oriental,
having declined the appointment as provincial fiscal of Tarlac. There was no
vacancy to which Romero could be legally appointed; hence, Romero’s
appointment as provincial fiscal of Negros Oriental vice Lacson was invalid.
To illustrate: in Lacson v. Romero,[58] Antonio Lacson (Lacson) occupied the post of provincial fiscal of
Negros Oriental. He was later nominated and confirmed as provincial fiscal of
Tarlac. The President nominated and the Commission on Appointments confirmed
Honorio Romero (Romero) as provincial fiscal of Negros Oriental as
Lacson’s replacement. Romero took his oath of office, but Lacson neither
accepted the appointment nor assumed office as provincial fiscal of Tarlac.
The Supreme Court ruled that Lacson remained as provincial fiscal of Negros Oriental,
having declined the appointment as provincial fiscal of Tarlac. There was no
vacancy to which Romero could be legally appointed; hence, Romero’s
appointment as provincial fiscal of Negros Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, “there is no power in this country which can compel a man to accept an office.” Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as such fiscal of Negros Oriental.[59]
[1] See Garces v. Court of Appeals, 328 Phil. 403 (1996).
[2] 84 Phil. 740 (1949).
[3] Id. at 745.
