Sunday, September 19, 2004

An acting regular appointment

An acting regular appointment

Updated 10:03pm (Mla time) Sept 18, 2004
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the September 19, 2004 issue of the Philippine Daily Inquirer

WITHOUT presuming to know better than the Supreme Court, I venture the opinion that the current petition of the opposition members to nullify the acting appointments of President Macapagal-Arroyo to the Cabinet and other high positions, effective immediately, does not have a sporting chance. It is, as we lawyers say, doomed ab initio.

It is true that during the congressional session, the President may only nominate instead of immediately appointing officers subject to confirmation by the Commission on Appointments. Thus, the Constitution says in Art. VII, Sec. 16, that the President “shall nominate and, with the consent of the Commission on Appointments, appoint” such officials. The effect is that such officials can assume their positions only after their formal appointment following the confirmation of their nominations. This kind of appointment is called the regular appointment, which can be made only while Congress is in session.

It is different from the other kind of appointment the President is authorized to make, and that is the ad interim appointment. This is made during the congressional recess, when the Commission on Appointments is also in recess and so cannot check beforehand the appointments of the President. Such appointments are effective immediately, but they may be approved or rejected by the Commission on Appointments when it assumes its sessions with the end of the congressional recess.

The process, in other words, is reversed. The regular appointment cannot be made without the previous approval by the Commission on Appointments of the corresponding nomination, but the ad interim appointment can be made immediately, without need of a prior nomination. It is still subject to the action of the Commission on Appointments, but this must come later, not before such appointment.

The reason for the ad interim appointment is the rule prohibiting the Commission on Appointments from meeting while Congress is not in session. The appointments body must also be in recess. During the interim, some offices have to be filled to prevent disruption of urgent services, as in vacancies in the Cabinet or the judiciary. Inaction on these positions will prejudice the public interest for lack of the proper officials to perform their functions. So, while the regular appointment cannot be made, the ad interim appointment must be employed in the meantime.

But what about the regular appointee, who cannot assume his duties as long as his nomination has not yet been confirmed by the Commission on Appointments? Will not the public interest also suffer as a result?

Not necessarily, because the nominee, while waiting for his regular appointment pending his confirmation by the Commission on Appointments, can be extended an acting appointment to the same office. As an acting appointee, he does not need prior approval by the Commission on Appointments and so can assume office and discharge its functions immediately.

An acting appointment is temporary in nature and is supposed to be made while the appointing authority is looking around for a suitable person to fill the office as a regular appointee with the required qualifications. The regular appointee cannot be separated from his office except for cause unlike the acting appointee whose services can be terminated at any time with or without cause as an implied condition of his appointment. In theory, the acting appointee is chosen to fill in the gap, so to speak, a sort of temporary substitute for lack of a better qualified person who can be trusted to perform the duties of the office he can occupy competently and permanently.

That is the theory, but the practice is different. The acting appointment is given to the very person nominated for regular appointment; so, he is not a space-filler but the person intended to occupy the office permanently. While his nomination is still under study by the Commission on Appointments, he discharges to the full all the powers and enjoys completely all its perquisites and privileges. Worse, if he is denied confirmation or is by-passed, which used to be a charitable way of rejecting the nominee, he is extended a new acting appointment, and another, and still another, ad nauseam, until his nomination is finally confirmed after much arm-twisting from the President. That is how the purposes of the Constitution are mocked and violated.

President Ramos appointed Frank Drilon acting secretary of justice every time his nomination for the same position was by-passed by the Commission on Appointments, at least seven times, if I remember right. His nomination was finally confirmed, and it was then that he was extended a regular appointment to the office he had been discharging in an acting capacity. Nobody questioned his status then, but the opposition is now raising the constitutionality of the practice before the Supreme Court, and I think correctly.

Hoping I will not be punished for contempt for pre-empting the decision of the Supreme Court, I make the fearful forecast that the petition will be dismissed, and I think incorrectly.


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