Political Law

Aquilino Pimentel vs Executive Secretary Eduardo Ermita

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G.R. NO. 164978 – 472 SCRA 587 – Political Law – Constitutional Law – The Executive Department – Powers of the President; Appointment Powers – Ad Interim Appointments vs Appointments in an Acting Capacity

Law on Public Officers – Modes and Kinds of Appointment

While Congress was in session, due to vacancies in the cabinet, then president Gloria Macapagal-Arroyo (GMA) appointed Arthur Yap et al as secretaries of their respective departments. They were appointed in acting capacities only. Senator Aquilino Pimentel together with 7 other senators filed a complaint against the appointment of Yap et al. Pimentel averred that GMA cannot make such appointments without the consent of the Commission on Appointment; that, in accordance with Section 10, Chapter 2, Book IV of Executive Order No. 292, only the undersecretary of the respective departments should be designated in acting capacities and not anyone else.

On the contrary, then Executive Secretary Eduardo Ermita averred that the president is empowered by Section 16, Article VII of the 1987 Constitution to issue appointments in an acting capacity to department secretaries without the consent of the Commission on Appointments even while Congress is in session. Further, EO 292 itself allows the president to issue temporary designation to an officer in the civil service provided that the temporary designation shall not exceed one year.

During the pendency of said case, Congress adjourned and GMA issued ad interim appointments re-appointing those previously appointed in acting capacity.

ISSUE: Whether or not the appointments made by ex PGMA is valid.

HELD: Yes. The argument raised by Ermita is correct. Further, EO 292 itself provided the safeguard so that such power will not be abused hence the provision that the temporary designation shall not exceed one year. In this case, in less than a year after the initial appointments made by GMA, and when the Congress was in recess, GMA issued the ad interim appointments – this also proves that the president was in good faith.

It must also be noted that cabinet secretaries are the alter egos of the president. The choice is the president’s to make and the president normally appoints those whom he/she can trust. She cannot be constrained to choose the undersecretary. She has the option to choose. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the President’s confidence. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee.

Anent the issue that GMA appointed “outsiders”, such is allowed. EO 292 also provides that the president “may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch.” Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent.

NOTE: Ad Interim Appointments vs Appointments in an Acting Capacity

  Ad Interim Appointments Appointments in an Acting Capacity
Description It is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the COA does not alter its permanent character (Matibag vs Benipayo) Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments.
When Effective Upon Acceptance by Appointee Upon Acceptance by Appointee
When Made When Congress is in recess Any time when there is vacancy
Submitted to the COA Yes No

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