Commission on Appointments

Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. (Article VII, 1987 Philippine Constitution)

What is the Commission on Appointments?

The Commission on Appointments is a body of the Congress of the Philippines as provided by the Constitution. It confirms certain appointments made by the President of the Philippines under Article VII, Section 16 of the 1987 Constitution which reads:

"The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.”

Composition (1-12-12)

1. Ex officio Chairman - Senate President

2. Members 

     a.  12 Senators

     b.  12 Members of the House of Representatives

How are the 12 senators and 12 congressmen elected?

The 12 Senators and 12 Congressmen are elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented.

Powers

The Commission shall act on all appointments submitted to it within thirty (30) session days of the Congress from their submission.

Voting

The Commission shall rule by a majority vote of all the Members. The chairman of the Commission shall not vote, except in case of a tie.

When shall the members Commission on Appointments meet?

The Commission shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its members. 

Who are the officers subject to confirmation by the CA?

Under Section 16, Article VII of the 1987 Constitution, there are two classes of public officers whose appointments need confirmation. These are:

1. The heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain; and

2.  Other officers whose appointments are vested in the President under the 1987 Constitution. The officers referred to under this provision are: the Chairman and Members of Constitutional Commission such as the Commission on Elections, the Commission on Audit and the Civil Service Commission; the regular members of the Judicial and Bar Council.

A. 1. Heads of Executive Departments

               a.  Executive Secretary

               b.  Secretary of executive departments

               c.  Press Secretary

               d.  Director General of NEDA 

               

    2. Ambassadors, other Public Ministers and Consuls

    3. Officers of the Armed Forces from the rank of Colonel or Naval Captain

Air Force, Army and Marine Corps

- General

- Lieutenant General

- Major General

- Brigadier General

- Colonel

Navy

- Admiral

- Vice Admiral

- Rear Admiral

- Commodore

- Captain

B. Other officers whose appointments are vested in the President under the 1987 Constitution

     1.  Regular Members of the Judicial and Bar Council

     2. Chairman and Commissioners of the Civil Service Commission

     3. Chairman and Commissioners of the Commission on Elections

     4. Chairman and Commissioners of the Commission on Audit

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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) 

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Calderon vs. Carale

1. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election).

2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law.

3. The Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments.

Facts: 

Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. Section 13 thereof provides that the Chairman, the Division Presiding Commissioners and other Commissioners of NLRC shall all be appointed by the President, subject to confirmation by the Commission on Appointments. President Aquino appointed respondents as the Chairman and Commissioners of the NLRC. 

Carale filed a petition for prohibition questioning the constitutionality and legality of respondents permanent appointments. Calderon insists that the appointments must be submitted to the CA for confirmation. He also posits that RA 6715 is not an encroachment on the appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as Congress may, by law, require confirmation by the Commission on Appointments of other officers appointed by the President additional to those mentioned in the first sentence of Section 16 of Article VII of the Constitution.

The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code transgresses Section 16, Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis. 

Issue: 

Whether or not Congress may, by law, require confirmation by the Commission on Appointments of appointments extended by the President to government officers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whose appointments require confirmation by the Commission on Appointments

Held: 

No. In Sarmiento III vs. Mison case, the Court stated that there are four (4) groups of officers whom the President shall appoint. These four (4) groups, are: First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; and Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. 

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointment are not otherwise provided for by law and those whom the President may be authorized by law to appoint. 

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is unconstitutional because:

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments; and

2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President.

It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading to may cases of abuse of such power of confirmation. 

Subsection 3, Section 10, Art. VII of the 1935 Constitution provided that the President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureau, officers of the Army from the rank of the colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint.. 

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure and disapproval of members of the Congress. The solution to the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A future constitutional convention or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the legislature or the executive would want it interpreted. (Calderon vs. Carale, GR No. 91636, April 23, 1992)

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Manalo vs. Sistoza

The police force is different from and independent of the armed forces and the ranks in the military are not similar to those in the Philippine National Police.  Thus, directors and chief superintendents of the PNP do not fall under the first category of presidential appointees requiring the confirmation by the Commission on Appointments. 


Facts: 

On December 13, 1990, former President Corazon C. Aquino signed into law Republic Act 6975, creating the Department of Interior and Local Government.  The said Act states that the PNP Chief, Chief Superintendent and Director General shall be appointed by the President subject to confirmation by the Commission on Appointments. Pursuant thereto, Pres. Aquino, through Executive Secretary Franklin S. Drilon, promoted 15 police officers to permanent positions in the Philippine National Police with the rank of Chief Superintendent to Director. The said police officers took their oath of office and assumed their respective positions.  Thereafter, the Department of Budget and Management, under the then Secretary Salvador M. Enriquez III, authorized disbursements for their salaries and other emoluments.

Petitioner filed a petition for prohibition, as a taxpayer suit, to assail the legality of subject appointments and disbursements made therefor. He contents that: (1) RA 6975 requires confirmation of the appointments of officers from the rank of senior superintendent and higher by the CA; (2) The PNP is akin to the Armed Forces where the Constitution specifically requires confirmation by the CA, and (3) Respondent Secretary in allowing and/or effecting disbursements in favor of respondent officers despite the unconstitutionality and illegality of their appointments is acting without or in excess of his jurisdiction or with grave abuse of discretion.

Issues:

1) Whether or not the appointment PNP officers need CA confirmation 

2) Whether or not the PNP is akin to the AFP
3) Whether or not Sections 26 and 31 of Republic Act 6975 are constitutional 

Held:

1. Under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 

Second, all other officers of the Government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.

It is well-settled that only presidential appointments belonging to the first group require the confirmation by the Commission on Appointments. The appointments of respondent officers who are not within the first category, need not be confirmed by the Commission on Appointments.  As held in the case of Tarrosa vs. Singson, Congress cannot by law expand the power of confirmation of the Commission on Appointments and require confirmation of appointments of other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution.

2. The Philippine National Police is separate and distinct from the Armed Forces of the Philippines.  

The Constitution, no less, sets forth the distinction. Under Section 4 of Article XVI of the 1987 Constitution, “The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the State.”

On the other hand, Section 6 of the same Article of the Constitution ordains that: “The State shall establish and maintain one police force, which shall be national in scope and civilian in character to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.”

The police force is different from and independent of the armed forces and the ranks in the military are not similar to those in the Philippine National Police.  Thus, directors and chief superintendents of the PNP, such as the herein respondent police officers, do not fall under the first category of presidential appointees requiring the confirmation by the Commission on Appointments.

3. Sections 26 and 31 of Republic Act 6975 which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed are unconstitutional.  The rest of Republic Act 6975 stands.  It is well-settled that when provisions of law declared void are severable from the main statute and the removal of the unconstitutional provisions would not affect the validity and enforceability of the other provisions, the statute remains valid without its voided sections. (Manalo vs. Sistoza, G.R. No. 107369, August 11, 1999)

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Tarrosa vs. Singson

Congress cannot by law expand the confirmation powers of the Commission on Appointments and require confirmation of appointment of other government officials not expressly mentioned in the first sentence of Section 16 of Article VII of the Constitution.

Facts:

Gabriel C. Singson was appointed Governor of the Bangko Sentral by President Fidel V. Ramos on July 2, 1993. Jesus Armando Tarrosa, as a "taxpayer", filed a petition for prohibition questioning the appointment of Singson for not having been confirmed by the Commission on Appointments as required by the provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the Central Monetary Authority of the Philippines. The Secretary of Budget and Management was impleaded for disbursing public funds in payment of the salaries and emoluments of respondent Singson. 

In their comment, respondents claim that Congress exceeded its legislative powers in requiring the confirmation by the CA of the appointment of the Governor of the Bangko Sentral. They contend that an appointment to the said position is not among the appointments which have to be confirmed by the CA, citing Section 16 of Article VI of the Constitution.

Held:

SC dismissed the petition.

The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of respondent Singson and alleges that the latter is unlawfully holding or exercising the powers of Governor of the Bangko Sentral. Such a special civil action can only be commenced by the Solicitor General or by a "person claiming to be entitled to a public office or position unlawfully held or exercised by another."

In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who did not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could not bring the action for quo warranto to oust the respondent from said office as a mere usurper.

Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question of title to an office, which must be resolved in a quo warranto proceeding, may not be determined in a suit to restrain the payment of salary to the person holding such office, brought by someone who does not claim to be the one entitled to occupy the said office.

However for the information of all concerned, we call attention to our decision in Calderon v. Carale, 208 SCRA 254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that Congress cannot by law expand the confirmation powers of the Commission on Appointments and require confirmation of appointment of other government officials not expressly mentioned in the first sentence of Section 16 of Article VII of the Constitution.   (Tarrosa vs. Singson, G.R. No. 111243, May 25, 1994)

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