The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office.
Facts:
While Congress is in their regular session, President Arroyo,
through Executive Secretary Eduardo Ermita, issued appointments to
respondents as acting secretaries of their respective departments without the
consent of the Commission on Appointments.
After the Congress had adjourned, President Arroyo issued ad
interim appointments to respondents as secretaries of the departments to which
they were previously appointed in an acting capacity.Petitioners senators filed
a petition for certiorari and prohibition with a prayer for the issuance
of a writ of preliminary injunction to declare unconstitutional the
appointments issued.
They assert
that “while Congress is in session, there can be no appointments, whether
regular or acting, to a vacant position of an office needing confirmation by
the Commission on Appointments, without first having obtained its consent.
Respondent secretaries, on the other hand, maintain that the
President can issue appointments in an acting capacity to department
secretaries without the consent of the Commission on Appointments even while
Congress is in session.
Issue:
Whether or not President Arroyo’s appointment of respondents as
acting secretaries without the consent of the Commission on Appointments while
Congress is in session is constitutional.
Held:
On the Mootness of the Petition
The Solicitor General argues
that the petition is moot because President Arroyo had extended to
respondents ad interim appointments on 23 September 2004
immediately after the recess of Congress.
As a rule, the writ of
prohibition will not lie to enjoin acts already done. However, as an
exception to the rule on mootness, courts will decide a question otherwise moot
if it is capable of repetition yet evading review.
In the present case, the
mootness of the petition does not bar its resolution. The question of the
constitutionality of the President’s appointment of department secretaries in
an acting capacity while Congress is in session will arise in every such
appointment.
On the Nature of the
Power to Appoint
The power to appoint is
essentially executive in nature, and the legislature may not interfere with the
exercise of this executive power except in those instances when the
Constitution expressly allows it to interfere.Limitations on the executive
power to appoint are construed strictly against the legislature. The scope of the
legislature’s interference in the executive’s power to appoint is limited to
the power to prescribe the qualifications to an appointive office. Congress
cannot appoint a person to an office in the guise of prescribing qualifications
to that office. Neither may Congress impose on the President the duty to
appoint any particular person to an office.
However, even if the
Commission on Appointments is composed of members of Congress, the exercise of
its powers is executive and not legislative. The Commission on Appointments
does not legislate when it exercises its power to give or withhold consent to
presidential appointments. Thus:
xxx The Commission on
Appointments is a creature of the Constitution. Although its membership is
confined to members of Congress, said Commission is independent of Congress.
The powers of the Commission do not come from Congress, but emanate directly
from the Constitution. Hence, it is not an agent of Congress. In fact, the
functions of the Commissioner are purely executive in nature.
On Petitioners’ Standing
The Solicitor General
states that petitioners may not claim standing as Senators because no power of
the Commission on Appointments has been "infringed upon or violated by the
President. If at all, the Commission on Appointments as a body (rather than
individual members of the Congress) may possess standing in this case."
Petitioners, on the other
hand, state that the Court can exercise its certiorari jurisdiction
over unconstitutional acts of the President. Petitioners further contend
that they possess standing because President Arroyo’s appointment of department
secretaries in an acting capacity while Congress is in session impairs the
powers of Congress. Petitioners cite Sanlakas v. Executive
Secretary as basis, thus:
To the extent that the
powers of Congress are impaired, so is the power of each member thereof, since
his office confers a right to participate in the exercise of the powers of that
institution.
An act of the Executive
which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
Considering the
independence of the Commission on Appointments from Congress, it is error for
petitioners to claim standing in the present case as members of Congress.
President Arroyo’s issuance of acting appointments while Congress is in session
impairs no power of Congress. Among the petitioners, only the following are
members of the Commission on Appointments of the 13th Congress: Senator Enrile
as Minority Floor Leader, Senator Lacson as Assistant Minority Floor Leader,
and Senator Angara, Senator Ejercito-Estrada, and Senator Osmeña as members.
Thus, on the impairment
of the prerogatives of members of the Commission on Appointments, only Senators
Enrile, Lacson, Angara, Ejercito-Estrada, and Osmeña have standing in the
present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and
Madrigal, who, though vigilant in protecting their perceived prerogatives as
members of Congress, possess no standing in the present petition.
Constitutionality
of President Arroyo’s issuance of appointments to respondents as
acting secretaries
Petitioners contend that President Arroyo should not have appointed respondents
as acting secretaries because "in case of a vacancy in the Office of a
Secretary, it is only an Undersecretary who can be designated as Acting
Secretary." Petitioners further assert that "while Congress is
in session, there can be no appointments, whether regular or acting, to a
vacant position of an office needing confirmation by the Commission on
Appointments, without first having obtained its consent."
The essence of an
appointment in an acting capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time until the appointment of
a permanent occupant to the office. In case of vacancy in an office
occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of
her choice as acting secretary before the permanent appointee of her choice
could assume office.
Congress, through a law,
cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. 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. Thus, by the very nature of the office of a department secretary,
the President must appoint in an acting capacity a person of her choice even while
Congress is in session. 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.
Express
provision of law allows President to make acting appointment
Sec. 17, Chap. 5, Title I, Book III, EO 292 states that “[t]he 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.
But does Sec. 17 apply to appointments vested in the President by the
Constitution? Petitioners assert that it only applies to appointments vested in
the President by law. Petitioners forget that Congress is not the only source
of law. “Law” refers to the Constitution, statutes or acts of Congress,
municipal ordinances, implementing rules issued pursuant to law, and judicial
decisions.
Petitioners claim that the issuance of appointments in an acting
capacity is susceptible to abuse. Petitioners fail to consider that acting
appointments cannot exceed one year as expressly provided in Section 17(3),
Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard
to prevent abuses, like the use of acting appointments as a way to circumvent
confirmation by the Commission on Appointments.
Ad-interim appointments
vs. appointments in an acting capacity
Ad-interim appointments
must be distinguished from appointments in an acting capacity. Both of them are
effective upon acceptance. But ad-interim appointments are extended only during
a recess of Congress, whereas acting appointments may be extended any time
there is a vacancy. Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection; acting appointments
are not submitted to the Commission on Appointments. 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.
However,
we find no abuse in the present case. The absence of abuse is readily apparent
from President Arroyo’s issuance of ad interim appointments to
respondents immediately upon the recess of Congress, way
before the lapse of one year. (Aquilino Pimentel vs.
Executive Secretary Eduardo Ermita, G.R. No. 164978, October 13, 2005)
