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Pimentel V Ermita

President Arroyo appointed respondents as acting secretaries when Congress was in session. Petitioners argued this was unconstitutional without Commission on Appointments consent. The Supreme Court ruled the appointments were constitutional. As alter egos of the President, acting secretaries must have the President's confidence, even during Congressional sessions, to fill vacancies temporarily until permanent appointments. The law allows Presidents to appoint competent persons as acting secretaries for less than one year to prevent abuse.

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80 views3 pages

Pimentel V Ermita

President Arroyo appointed respondents as acting secretaries when Congress was in session. Petitioners argued this was unconstitutional without Commission on Appointments consent. The Supreme Court ruled the appointments were constitutional. As alter egos of the President, acting secretaries must have the President's confidence, even during Congressional sessions, to fill vacancies temporarily until permanent appointments. The law allows Presidents to appoint competent persons as acting secretaries for less than one year to prevent abuse.

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Jay Marie
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PIMENTEL V ERMITA

FACTS:

The Senate and the House of Representatives ("Congress") commenced their regular
session on 26 July 2004. The Commission on Appointments, composed of Senators
and Representatives, was constituted on 25 August 2004.

Meanwhile, President Arroyo issued appointments[2] to respondents as acting


secretaries of their respective departments.

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed ACTING
SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person
replaced).

By virtue hereof, you may qualify and enter upon the performance of the duties and
functions of the office, furnishing this Office and the Civil Service Commission with
copies of your Oath of Office.

(signed)

Gloria Arroyo

Congress adjourned on 22 September 2004. On 23 September 2004, President


Arroyo issued ad interim appointments[3] to respondents as secretaries of the
departments to which they were previously appointed in an acting capacity. The
appointment papers... are uniformly worded as follows:

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY
[AD INTERIM], DEPARTMENT OF (appropriate department).

By virtue hereof, you may qualify and enter upon the performance of the duties and
functions of the office, furnishing this Office and the Civil Service Commission with
copies of your oath of office.

(signed)

Gloria Arroyo

Petitioners file for certiorari and prohibition with a prayer for the issuance of a writ
of preliminary injunction to declare unconstitutional the appointments issued by
President Gloria Macapagal-Arroyo (“President Arroyo”) through Executive
Secretary Eduardo R. Ermita (“Secretary Ermita”) to Florencio B. Abad, Avelino J.
Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G.
Romulo, Rene C. Villa, and Arthur C. Yap (“respondents”) as acting secretaries of
their respective departments.The petition also seeks to prohibit respondents from
performing the duties of department secretaries.

ISSUE:

Whether President Arroyo’s appointment of Defensor et al. as acting secretaries was


constitutional, even without the consent of the Commission on Appointments while
Congress is in session.

RULING:

YES. In 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
the 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.
The law expressly allows the president to make such acting appointment. Section
17, Chapter 5, Title I, Book III of EO 292 states that “the President may temporarily
designate an officer already in the government service or any other competend
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. Pimentel
et al. assert that Section 17 does not apply to appointments vested in the President
by the Constitution, because 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.
Finally, Pimentel et al. claim that the issuance of appointments in an acting capacity
is susceptible to abuse. They however fail to consider that acting appointments
cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title 1,
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. In distinguishing ad interim appointments from
appointments in an acting capacity, a noted textbook writer on constitutional law
has observed that “Ad-interim appointments must be distinguished from
appointments in an acting capacity. Both of them are effective upon acceptable. 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 filing important
offices but if abused they can also be a way of circumventing the need for
confirmation by the COA.” The court finds no abuse in the present case. The absence
of abuse is readily apparent from President Arroyo’s issuance of ad interim
appointments to Defensor et al. immediately upon the recess of Congress, way
before the lapse of one year.

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