Pimentel vs. Ermita

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)