Why Licuanan must not resign

Patricia Licuanan, as a matter of principle, must not resign as chairperson of the Commission on Higher Education. Officials with terms, whether laid down by the Constitution or by the law, have security of tenure during that term. There is no doubt about this. To interpret otherwise is a transgression of the rule of law and will have serious governance consequences. Among others, it is an express violation of legislative intent in case of terms laid down by law for those who have terms provided by the Constitution.

Employees in the civil service, whether holding career or non-career positions, enjoy security of tenure. This right to security of tenure finds basis in no less than the Constitution, which provides in Section 2(3) of Article IX-B that “no officer or employee of the civil service shall be removed or suspended except for cause provided by law.” The Supreme Court expounded this provision in the 1991 case of Jocom v. Regalado in this way: “The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions, and the cause under which an employee may be removed or suspended must naturally have some relation to the character or fitness of the officer or employee, for the discharge of the functions of his office.”

It should be recalled that Executive Order No. 292, otherwise known as the “Administrative Code of 1987,” classifies positions in the civil service into career and non-career. The non-career service is described in Section of the Executive Order: “The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.

Under the Administrative Code, the Non-Career Service shall include: “Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff”. Similarly, Civil Service Commission (CSC) Resolution No. 799, s. 2009 excludes from the coverage of the career executive service (CES) the “Chairman and members of commissions and boards with fixed terms of office.”

In the 2006 case of Office of the President v. Buenaobra, the Supreme Court categorized the position of the chairperson of the Komisyon sa Wikang Pilipino as non-career, because a statute creating the subject government agency, Republic Act (R.A.) No. 7104, specifically fixes/limits the term of the KWP chairperson, who is appointed by the President, to seven years. In ruling that the respondent in the said case was improperly removed from her non-career position, the Court reiterated that even non-career service personnel enjoy security of tenure, such that they may only be removed upon observance of due process and for just cause. Otherwise stated, non-career service personnel whose tenure is specifically fixed or provided by law cannot be removed from office at the pleasure of the appointing authority.

The Buenaobra case is more apropos to the situation at hand, since like the KWP chairperson, the term of office of the chairperson of the Commission on Higher Education (CHED) is fixed by law. Section 5 of R.A. No. 7722, otherwise known as the “Higher Education Act of 1994”, provides that the President shall appoint the full-time chairman and the commissioners for a term of four years, without prejudice to one reappointment.

The Higher Education Act of 1994, while stating that the President shall appoint the CHED chairperson and commissioners, does not specify that they hold their offices at the President’s discretion or that they shall be coterminous with the appointing authority, thus under Section 5 of this law: “The commissioners shall hold office until their successors shall have been appointed and qualified. Should a member of the Commission fail to complete the term, his successor shall be appointed by the President of the Philippines but only for the unexpired portion of the term.”

Significantly, it is also well-established, as articulated in the 1992 case of Aquino v. Civil Service Commission, that “once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute, but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.”

In Chairperson Licuanan’s case, her appointment has already been completed in 2014, when she was re-appointed (for her second term) by then-President Benigno S. Aquino III. Accordingly, she is entitled to hold such position until 2018, pursuant to the aforementioned provision in R.A. No. 7722 setting the term of the chairperson to four years. Her removal from such office/position can only be for just cause and upon compliance with due process requirements.

Notably, there appears to be no issue in this case as regards Licuanan’s satisfaction of or compliance with the qualifications required by law for holders of the subject position. Therefore, it cannot be claimed that hers was a temporary appointment, to which kind of appointment, according to jurisprudence, the general rule of security of tenure does not apply. In the 1991 case of Achacoso v. Macaraig, which concerned the position of Administrator of the Philippine Overseas Employment Administration which belongs to the career service, the Supreme Court explained that an appointment in favor a person who does not meet all the requirements for the position to which he is being appointed could be regarded only as temporary, and as such, “it could be withdrawn at will by the appointing authority and ‘at a moment’s notice,’ conformably to established jurisprudence.”

In the Achacoso decision, the Court also stated that the right to security of tenure hinges on the nature of the appointment, i.e., whether permanent or temporary, which in turn depends on the appointee’s eligibility or lack of it. Therefore, unless it can be shown that the appointment in favor of Licuanan is of a temporary nature because she did not meet the requirements of the position, it is submitted that her term would expire in 2018, and the same cannot be unduly shortened without just cause, even by the president as the appointing authority.

As a final note, it is important to keep in mind a pronouncement (arguably obiter or non-binding) made by the Supreme Court in a 2007 case (Collantes vs. CA) that qualifying a resignation as a courtesy resignation produces no special legal effects, and such a resignation would be just as effectual as any other resignation. This serves to guide and caution public officers such as Licuanan in addressing or responding to reports about their removal from office.

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Topics: Tony La Viña , Why Licuanan must not resign , Patricia Licuanan , Commission on Higher Education
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