Commission En Banc of the Commission on Human Rights (CHR) issued a Resolution approving the appointment to the position of Information Officer V (IO V) of respondent Maricelle M. Cortes. Commissioner Eligio P. Mallari, father of respondent Cortes, abstained from voting and requested the CHR to render an opinion on the legality of the respondent’s appointment.
The CHR Legal Division Chief rendered an opinion that respondent Cortes’ appointment is not covered by the rule on nepotism because the appointing authority, the Commission En Banc, has a personality distinct and separate from its members. CHR Chairperson Quisumbing, however, sent respondent a letter on the same day instructing her not to assume her position because her appointment is not yet complete.
Later, CSC-NCR Field Office informed Chairperson Quisumbing that it will conduct an investigation on the appointment of respondent Cortes.
Director Cornelio of the CSC-NCR Field Office informed Chairperson Quisumbing that the appointment of respondent Cortes is not valid because it is covered by the rule on nepotism under Section 9 of the Revised Omnibus Rules on Appointments and Other Personnel Actions. According to the CSC-NCR, Commissioner Mallari is considered an appointing authority with respect to respondent Cortes despite being a mere member of the Commission En Banc.
Whether the appointment of respondent Cortes as IO V in the CHR is not covered by the prohibition against nepotism.
Nepotism is defined as an appointment issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:
(1) appointing authority;
(2) recommending authority;
(3) chief of the bureau or office; and (4) person exercising immediate supervision over the appointee.
Here, it is undisputed that respondent Cortes is a relative of Commissioner Mallari in the first degree of consanguinity, as in fact Cortes is the daughter of Commissioner Mallari.
By way of exception, the following shall not be covered by the prohibition:
(1) persons employed in a confidential capacity;
(3) physicians; and
(4) members of the Armed Forces of the Philippines.
In the present case, however, the appointment of respondent Cortes as IO V in the CHR does not fall to any of the exemptions provided by law.
In her defense, respondent Cortes merely raises the argument that the appointing authority referred to in Section 59 of the Administrative Code is the Commission En Banc and not the individual Commissioners who compose it.
The purpose of Section 59 on the rule against nepotism is to take out the discretion of the appointing and recommending authority on the matter of appointing or recommending for appointment a relative.
Clearly, the prohibition against nepotism is intended to apply to natural persons. It is one pernicious evil impeding the civil service and the efficiency of its personnel.
Indeed, it is absurd to declare that the prohibitive veil on nepotism does not include appointments made by a group of individuals acting as a body.
What cannot be done directly cannot be done indirectly. This principle is elementary and does not need explanation. Certainly, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.
In the present case, respondent Cortes’ appointment as IO V in the CHR by the Commission En Banc, where his father is a member, is covered by the prohibition.
Commissioner Mallari’s abstention from voting did not cure the nepotistic character of the appointment because the evil sought to be avoided by the prohibition still exists. His mere presence during the deliberation for the appointment of IO V created an impression of influence and cast doubt on the impartiality and neutrality of the Commission En Banc.
The CSC-NCR Decisioninvalidating the appointment of respondent Maricelle M. Cortes for being nepotistic was REINSTATED.