Aquilino Pimentel vs Executive Secretary

Eduardo Ermita
Aquilino Pimentel vs Executive Secretary
Eduardo Ermita
472 SCRA 587 Political Law Commission on Appointment Ad Interim Appointments vs
Appointments in an Acting Capacity

Law on Public Officers Modes and Kinds of Appointment

While Congress was in session, due to vacancies in the 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 interim appointments
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
presidents 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 Presidents 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. 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.