While Congress was in session, due to vacancies in the
” Thus, the President may even appoint in an
cabinet, then president Gloria Macapagal-Arroyo (GMA)
appointed Arthur Yap et al as secretaries of their
respective departments. They were appointed in an
acting capacity 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 appointment 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 an acting capacity
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 interimappointments 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.
acting capacity a person not yet in the government
service, as long as the President deems that person
competent.
Pimentel, Jr. vs Ermita, 472 SCRA 587
Posted by Pius Morados on November 7, 2011
(Public Officer, Difference Between Ad-Interim and
Acting Appointments)
Facts: President Arroyo issued appointments to
respondents as acting secretaries of their respective
departments without the consent of the Commission on
Appointments, while Congress is in their regular session.
Subsequently 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 assailing the constitutionality of the
appointments, 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 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.
EO 292, which devotes a chapter to the President’s
power of appointment. Sections 16 and 17, Chapter 5,
Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. — The President shall
exercise the power to appoint such officials as provided
for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. — (1)
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, appointment to which is vested in
him by law, when: (a) the officer regularly appointed to
the office is unable to perform his duties by reason of
illness, absence or any other cause; or (b) there exists a
vacancy[.]
Issue: WON the President can issue appointments in an
acting capacity to department secretaries while
Congress is in session.
Held: Yes. 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.
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.
Ad interim appointments and acting appointments are
both 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.
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.
Note: Can Congress impose the automatic appointment
of the undersecretary?
Congress, through a law, cannot impose on the
President the obligation to appoint automatically the
undersecretary as her temporary alter ego.
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.
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
Jardeleza vs. Sereno the invocation of the “unanimity rule” on integrity in
FACTS: violation of his right to due process guaranteed not only
• by the Constitution but by the Council’s own rules. For
In 2014, incumbent Solicitor General Francis Jardeleza said reason, the Court is of the position that it can
was nominated to replace retiring Associate Justice exercise the expanded judicial power of review vested
Roberto Abad. upon it by the 1987 Constitution.
• •
CJ Sereno manifested that she would be invoking It has been judicially settled that
Section 2, Rule 10 of JBC-0094 regarding a question on a petition for
Jardeleza’s integrity over his handling of an international certiorari
arbitration case for the government. is a proper remedy to question the act of any branch or
• instrumentality of the government on the ground of grave
When Jardeleza appeared before the JBC, he was abuse of discretion amounting tolack or excess of
asked by CJ Sereno if he wanted to defend himself jurisdiction
against the integrity issues raised against him. He by any branch or instrumentality of the government,
answered that he would defend himself provided that even if the latter does not exercise judicial, quasi-judicial
due process would be observed. Jardeleza specifically or ministerial functions.
demanded that CJ Sereno and AJ Carpio execute a •
sworn statement specifying their objections and that he In a case like this, where constitutional bearings are too
be afforded the right to cross-examine them in a public blatant to ignore, theCourt does not find passivity as an
hearing. Finally, he requested the JBC to defer its alternative. The impasse must be overcome.
meeting considering that the Court En Banc would meet •
the next day to act on his pending letter-petition. At this Mandamus
juncture, Jardeleza was excused. , on the other hand, lies to compel the performance,
• when refused, of a ministerial duty, but not to compel the
Later in the afternoon of the same day, and apparently performance of a discretionary duty. Mandamus will not
denying Jardeleza’s request for deferment of the issue to control or review the exercise of discretion of a
proceedings, the JBC continued its deliberations and public officer where the law imposes upon said public
proceeded to vote for the nominees to be included in the officer the right and duty to exercise his judgment in
short list. Thereafter, the JBC released the subject short reference to any matter in which he is required to act. It
list of four (4) nominees which excluded Jardeleza. is his judgment that is to be exercised and not that of the
• court. There is no question that the JBC’s duty to
Consequently, Jardeleza filed the present petition for nominate is discretionary and it may not be compelled to
certiorari do something.
and
mandamus
with prayer for the issuance of a TRO, seeking to
compel the JBC to include him in the list of nominees.
ISSUE:
•
Does the Supreme Court’s power of supervision over the
JBC include the remedies of certiorari and mandamus?
HELD:

•
YES, on the availability of certiorari. NO, on the
availability of mandamus.
•
Article VIII, Section 1 provides that
the judicial power is vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
•
In this case, Jardeleza cries that although he earned a
qualifying number of votes in the JBC, it was negated by