Pimentel v Ermita

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VOL. 472, OCTOBER 13, 2005 587

Pimentel, Jr. vs. Ermita

G.R. No. 164978. October 13, 2005.*

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA,

JUAN PONCE ENRILE, LUISA P. EJERCITO-

ESTRADA, JINGGOY E. ESTRADA, PANFILO M.LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL,

and SERGIO R. OSMEA III, petitioners, vs. EXEC.

SECRETARY EDUARDO R. ERMITA, 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.

Remedial Law; Civil Procedure; Prohibition; As a rule, the writ

of prohibition will not lie to enjoin acts already done.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

Presidents appointment of department secretaries in an acting

capacity while Congress is in session will arise in every such

appointment.

Constitutional Law; Appointments; Executive Department;

Congress; 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.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 legislatures interference in the

executives 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.

_______________

* EN BANC.

588

588 SUPREME COURT REPORTS ANNOTATED


Same; Same; Commission on Appointments; Even if the

Commission on Appointments is composed of members of Congress,

the exercise of its powers is executive and not legislative.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: x x x 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. x x x

Same; Same; Same; 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.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

Arroyos 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 Osmea as

members. Thus, on the impairment of the prerogatives of members

of the Commission on Appointments, only Senators Enrile, Lacson,

Angara, Ejercito-Estrada, and Osmea 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.

Same; Same; Same; Congress, through a law, cannot impose on

the President the obligation to appoint automatically the

undersecretary as her temporary alter ego.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

589

VOL. 472, OCTOBER 13, 2005 589


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.

Same; Same; Same; Statutes; Section 17, Chapter 5, Title I,

Book III of 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.The law expressly allows the President to make

such acting appointment. Section 17, Chapter 5, Title I, Book III of

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.

Same; Same; Same; Ad interim appointments are extended only

during recess of Congress and are submitted to the Commission on

Appointments for confirmation or rejection, whereas appointments

in an acting capacity may be extended any time there is a vacancy



and are not submitted to the Commission on Appointments.In

distinguishing ad interim appointments from appointments in an

acting capacity, a noted textbook writer on constitutional law has

observed: 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.

590



SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari and Prohibition.

The facts are stated in the opinion of the Court.

Luis Ma. Gil L. Gana for petitioners.

The Solicitor General for respondents.

CARPIO, J.:

The Case

This is a petition for certiorari and prohibition1

with a

prayer for the issuance of a writ of preliminary injunction to

declare unconstitutional the appointments issued byPresident 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.



Antecedent Facts

The Senate and the House of Representatives (Congress)

commenced their regular session on 26 July 2004. The

Commission on Appointments, composed of Senators andRepresentatives, was constituted on 25 August 2004.

Meanwhile, President Arroyo issued appointments2

to

respondents as acting secretaries of their respective

departments.

_______________

1 Under Rule 65 of the Rules of Court.

2 Rollo, pp. 21-28.

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VOL. 472, OCTOBER 13, 2005 591


Appointee Department Date ofAppointment

Arthur C. Yap Agriculture 15 August 2004

Alberto G. Romulo Foreign Affairs 23 August 2004

Raul M. Gonzalez Justice 23 August 2004

Florencio B. Abad Education 23 August 2004

Avelino J. Cruz,Jr.

National Defense 23 August 2004

Rene C. Villa Agrarian Reform 23 August 2004

Joseph H. Durano Tourism 23 August 2004

Michael T.Defensor

Environment andNaturalResources

23 August 2004

The appointment papers are uniformly worded as follows:

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

Respondents took their oath of office and assumed duties as

acting secretaries.

On 8 September 2004, Aquilino Q. Pimentel, Jr.

(Senator Pimentel), Edgardo J. Angara (SenatorAngara), Juan Ponce Enrile (Senator Enrile), Luisa P.

Ejercito-Estrada (Senator Ejercito-Estrada), Jinggoy E.

Estrada (Senator Estrada), Panfilo M. Lacson (Senator

Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S.Madrigal (Senator Madrigal), and Sergio R. Osmea, III

(Senator Osmea) (petitioners) filed the present petition

as Senators of the Republic of the Philippines.

592



Congress adjourned on 22 September 2004. On 23

September 2004, President Arroyo issued ad interim

appointments3

to respondents as secretaries of the

departments to which they were previously appointed in an

acting capacity. The appointment papers are uniformlyworded 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 uponthe 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

Issue



The petition questions the constitutionality of President

Arroyos appointment of respondents as acting secretaries

without the consent of the Commission on Appointments

while Congress is in session.

The Courts Ruling

The petition has no merit.

Preliminary Matters

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.

_______________

3 Rollo, pp. 45-60.

593

VOL. 472, OCTOBER 13, 2005 593


As a rule, the writ of prohibition will not lie to enjoin acts

already done.4

However, as an exception to the rule onmootness, courts will decide a question otherwise moot if it is

capable of repetition yet evading review.5

In the present case, the mootness of the petition does not

bar its resolution. The question of the constitutionality of

the Presidents 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.6

Limitations on



the executive power to appoint are construed strictly against

the legis-lature.7

The scope of the legislatures interferencein the executives 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

_______________

4 Tolentino v. Commission on Elections, G.R. No. 148334, 21 January

2004, 420 SCRA 438 citing Gil v. Benipayo, G.R. No. 148179, 26 June

2001 (minute resolution).

5 Tolentino v. Commission on Elections, G.R. No. 148334, 21 January

2004, 420 SCRA 438 citing Chief Supt. Acop v. Secretary Guingona, Jr.,

433 Phil. 62; 383 SCRA 577 (2002); Viola v. Hon. Alunan III, 343 Phil.

184; 277 SCRA 409 (1997); Alunan III v. Mira-sol, 342 Phil. 467; 276

SCRA 501 (1997).

6 See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF

THE REPUBLIC OF THE PHILIPPINES:ACOMMENTARY 768 (1996).

7 See Sarmiento III v. Mison, No. L-79974, 17 December 1987, 156

SCRA 549.

594



President the duty to appoint any particular person to an

office.8

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 onAppointments does not legislate when it exercises its power

to give or withhold consent to presidential appointments.

Thus:

x x x 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. x

x x9



On Petitioners Standing

The Solicitor General states that the present petition is a

quo warranto proceeding because, with the exception of

Secretary Ermita, petitioners effectively seek to oust

respondents for unlawfully exercising the powers of

department secretaries. The Solicitor General further 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. x x x If at all,the Commission on Appointments as a body (rather than

individual members of the Congress) may possess standing

in this case.10

Petitioners, on the other hand, state that the Court can

exercise its certiorari jurisdiction over unconstitutional acts

of the President.11

Petitioners further contend that they

possess

_______________

8 See Manalang v. Quitoriano, et al., 94 Phil. 903 (1954); Flores v.

Drilon, G.R. No. 104732, 22 June 1993, 223 SCRA 568.

9 Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962, 5 SCRA 1. But

see Justice Concepcions Concurring Opinion in Guevara v. Inocentes, 123

Phil. 201, 211; 16 SCRA 379, 389 (1966).

10 Rollo, p. 38.

11 Ibid., p. 65.

595

VOL. 472, OCTOBER 13, 2005 595


standing because President Arroyos appointment of

department secretaries in an acting capacity while Congress

is in session impairs the powers of Congress. Petitioners cite

Sanlakas v. Executive Secretary12

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 toclaim standing in the present case as members of Congress.

President Arroyos 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 Osmea as members.

Thus, on the impairment of the prerogatives of members

of the Commission on Appointments, only Senators Enrile,

Lacson, Angara, Ejercito-Estrada, and Osmea 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 presentpetition.

_______________

12 G.R. No. 159085, 3 February 2004, 421 SCRA 656 citing Philippine

Constitution Association v. Enriquez, G.R. No. 113105, 19 August 1994,

235 SCRA 506.

596



The Constitutionality of President Arroyos Issuance of Appointments to Respondents as ActingSecretaries

Petitioners contend that President Arroyo should not haveappointed 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.13

Petitioners base their argument on Section 10,

Chapter 2, Book IV of Executive Order No. 292 (EO 292),14

which enumerates the powers and duties of the

undersecretary. Paragraph 5 of Section 10 reads:

SEC. 10. Powers and Duties of the Undersecretary.The



Undersecretary shall:

x x x

(5) Temporarily discharge the duties of the Secretary in the

latters absence or inability to discharge his duties for any cause or

in case of vacancy of the said office, unless otherwise provided by

law. Where there are more than one Undersecretary, the Secretary

shall allocate the foregoing powers and duties among them. The

President shall likewise make the temporary designation of Acting

Secretary from among them; and

x x x

Petitioners further assert that while Congress is in session,

there can be no appointments, whether regular or acting, toa vacant position of an office needing confirmation by the

Commission on Appointments, without first having obtained

its consent.15

In sharp contrast, respondents 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. Respondents

_______________

13 Rollo, p. 14.

14 Also known as the Administrative Code of 1987.

15 Rollo, p. 12.

597

VOL. 472, OCTOBER 13, 2005 597


point to Section 16, Article VII of the 1987 Constitution.

Section 16 reads:

SEC. 16. 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.

The President shall have the power to make appointments

during the recess of the Congress, whether voluntary or

compulsory, but such appointments shall be effective only until

disapproval by the Commission on Appointments or until the next

adjournment of the Congress.

Respondents also rely on EO 292, which devotes a chapter tothe Presidents 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[.]

(2) The person designated shall receive the compensation

attached to the position, unless he is already in the government

service in which case he shall receive only such additional

compensation as, with his existing salary, shall not exceed the

salary authorized by law for the position filled. The compensation

hereby authorized shall

598



be paid out of the funds appropriated for the office or agency

concerned.

(3) In no case shall a temporary designation exceed one

(1) year. (Emphasis supplied)

Petitioners and respondents maintain two diametricallyopposed lines of thought. Petitioners assert that thePresident cannot issue appointments in an acting capacity

to department secretaries while Congress is in sessionbecause the law does not give the President such power. In

contrast, respondents insist that the President can issue



such appointments because no law prohibits suchappointments.

The essence of an appointment in an acting capacity is itstemporary nature. It is a stop-gap measure intended to fill

an office for a limited time until the appointment of apermanent occupant to the office.

16

In case of vacancy in anoffice occupied by an alter ego of the President, such as the

office of a department secretary, the President mustnecessarily appoint an alter ego of her choice as acting

secretary before the permanent appointee of her choicecould assume office.

Congress, through a law, cannot impose on the Presidentthe obligation to appoint automatically the undersecretaryas 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 egoshould be.

The office of a department secretary may become vacantwhile Congress is in session. Since a department secretary isthe alter ego of the President, the acting appointee to the

office must necessarily have the Presidents confidence.Thus, by the very nature of the office of a department

secretary, the President must appoint in an acting capacitya person of her

_______________

16 See Marohombsar v. Alonto, Jr., G.R. No. 93711, 25 February 1991,

194 SCRA 390.

599

VOL. 472, OCTOBER 13, 2005 599


choice even while Congress is in session. That person may ormay not be the permanent appointee, but practical reasons

may make it expedient that the acting appointee will also bethe permanent appointee.

The law expressly allows the President to make suchacting appointment. Section 17, Chapter 5, Title I, Book III

of EO 292 states that [t]he President may temporarilydesignate an officer already in the government service orany other competent person to perform the functions of an



office in the executive branch. Thus, the President mayeven appoint in an acting capacity a person not yet in thegovernment service, as long as the President deems that

person competent.Petitioners assert that Section 17 does not apply to

appointments vested in the President by the Constitution,

because it only applies to appointments vested in thePresident by law. Petitioners forget that Congress is not the

only source of law. Law refers to the Constitution, statutesor acts of Congress, municipal ordinances, implementing

rules issued pursuant to law, and judicial decisions.17

Finally, petitioners claim that the issuance of

appointments in an acting capacity is susceptible to abuse.Petitioners fail to consider that acting appointments cannotexceed one year as expressly provided in Section 17(3),

Chapter 5, Title I, Book III of EO 292. The law hasincorporated this safeguard to prevent abuses, like the use

of acting appointments as a way to circumvent confirmationby the Commission on Appointments.

In distinguishing ad interim appointments fromappointments in an acting capacity, a noted textbook writeron constitutional law has observed:

_______________

17 Article 8, Civil Code. See National Amnesty Commission v.

Commission on Audit, G.R. No. 156982, 8 September 2004, 437 SCRA

655.

600



Ad interim appointments must be distinguished fromappointments in an acting capacity. Both of them areeffective upon acceptance. But ad interim appointments are

extended only during a recess of Congress, whereas actingappointments may be extended any time there is a vacancy.

Moreover ad interim appointments are submitted to theCommission on Appointments for confirmation or rejection;

acting appointments are not submitted to the Commissionon Appointments. Acting appointments are a way oftemporarily filling important offices but, if abused, they can

also be a way of circumventing the need for confirmation by



the Commission on Appointments.18

However, we find no abuse in the present case. The

absence of abuse is readily apparent from PresidentArroyos issuance of ad interim appointments to respondentsimmediately upon the recess of Congress, way before the

lapse of one year.WHEREFORE, we DISMISS the present petition for

certiorari and prohibition.SO ORDERED.

Davide, Jr. (C.J.), Puno, Panganiban, Quisumbing,

Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-

Nazario and Garcia, JJ., concur.

Petition dismissed.

Notes.The appointing authority shall be liable for thepayment of the salary of the appointee if the appointment isdisapproved because the appointing authority has issued it

in violation of existing laws or rules making theappointment unlawful. (Occidental Mindoro National

College [OMNC] vs. Macaraig, 419 SCRA 708 [2004])

_______________

18 JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE

REPUBLIC OF THE PHILIPPINES:ACOMMENTARY 772 (1996).

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Appointments to newly-created positions are not covered by

the Attrition Law. (Civil Service Commission vs. Joson, Jr.,429 SCRA 773 [2004])

The reckoning point in determining the qualifications ofan appointee is the date of issuance of the appointment and

not the date of its approval by the Civil Service Commission(CSC) or the date of resolution of the protest against it.(Civil Service Commission vs. De la Cruz, 437 SCRA 403

[2004])

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Pimentel v Ermita