What now, Comelec, COA, and CSC bosses?
After the Commission on Appointments (CA) bypassed the ad-interim appointments of the top bosses of the Commission on Elections or Comelec (chair Saidamen Pangarungan and commissioners George Garcia and Aimee Torrefranca-Neri), the chairs of the Commission on Audit or COA (Rizalina Justol) and of the Civil Service Commission or CSC (Karlo Nograles), and 115 officers of the Armed Forces of the Philippines (AFP), what will happen to them, to the acts they performed, and to the offices they held?
UNDER THE CONSTITUTION (Article IX), the chair and the two commissioners of the CSC (Section B-1-2), the chair and the six commissioners of the Comelec (Section C-1-2), and the chair and the two commissioners of the COA “shall be appointed by the President with the consent of the [CA] … for a term of seven years without reappointment.”
Composed of 12 senators and 12 representatives with the Senate president as ex officio chair, the CA is a political, not a judicial, body. Thus, its actions or inaction and the reasons given therefor (in this instance, “to give President-elect Ferdinand ‘Bongbong’ Marcos Jr. a free hand in selecting his own officials”) cannot be reviewed by the judiciary, except—in my humble opinion—for grave abuse of discretion amounting to lack or excess of jurisdiction.
The bypassed officials were appointed by President Duterte during the recess of Congress between Feb. 2 and May 23 because the vacancies occurred only on or after Feb. 2 when the incumbents retired. Hence, the appointments (or, more accurately, “nominations”) of their successors were deemed “ad interim” which, under the Constitution (Article VII, Section 16), “shall be effective only until after disapproval by the [CA] or until the next adjournment of the Congress.”
The confirmation of the 115 officers of the AFP “from the rank of colonel or naval captain” is required also by Article VII, Section 16 of the Constitution.
CONSISTENT WITH THE ABOVE-QUOTED PROVISIONS, the ad interim appointments of all the said officials of the Comelec, COA, CSC, and AFP automatically ended at midnight on June 4 when Congress adjourned its session, (though the CA adjourned on June 1).
However, all the official acts and opinions they rendered during their terms of office are valid and legal. In fact, their ad interim appointments, though short-lived, are deemed by law to be permanent, not temporary, in the sense that they could not have been removed from their offices, not even by Mr. Duterte who appointed them. Had their nominations been confirmed by the CA, they could have enjoyed their seven-year terms and could have been removed only by the tedious process of impeachment.
Moreover, the compensations and perks they received were also legal and valid. Since they retired at the end of their terms, they could be entitled to retirement benefits. Meanwhile, their orphaned offices could be filled by the remaining commissioners on a temporary basis, as the four remaining Comelec members had already done in electing Commissioner Socorro Inting as acting Comelec chair.
MAY MR. DUTERTE GIVE THEM ANOTHER AD INTERIM APPOINTMENT? No, because under Article VII, Section 15 of our Constitution, “Two months immediately before the next presidential election and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”
They cannot fall under the exception because the appointees would be to the three independent commissions (Comelec, COA, and CSC), not to “executive positions.” Moreover, in Brilliantes v. Yorac (Dec. 18, 1990), the Supreme Court ruled that the President cannot make “acting” appointments to the Comelec, and by the same reason, to the COA and CSC too.
For his part, former commissioner Garcia said he had no regrets in serving even for a few months only and would be happy to return to his practice and teaching of law. Indeed, he is a much-sought-after nonpartisan expert on election law and had been counsel for the President-elect in his election protest against Vice President Leni Robredo, and for Sen. Juan Miguel “Migz” Zubiri in the election protest filed by Sen. Aquilino “Koko” Pimentel III.
I cannot end this piece without congratulating Senator Zubiri for his impending election as Senate president. I know him to be a consensus builder, an honest public servant, and a gentleman of the old school (though still quite young in chronological age). On Aug. 3, 2011, he voluntarily resigned his position as senator “without admitting any fault and with [his] vehement denial of the alleged electoral fraud hurled against (him),” thereby paving the way for Koko Pimentel to occupy his seat. Later, the electorate rewarded his high ethical conduct by convincingly electing him to the Senate in 2016, and again in 2022.
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