Is appointment of Comelec chair constitutional?

A professor and habitual reader asked me three questions: “(1) Do you believe the ad interim nomination or appointment of Compañero George Garcia as chairman of the Commission on Election [Comelec] can withstand constitutional scrutiny? (2) Should he not have declined the appointment given that he has so many clients, including the President, with pending cases and administrative problems in the Commission? And (3) Can Saidamen Pangarungan and Aimee Torrefranca-Neri be returned to the Comelec?”

LET US BEGIN THE ANSWERS WITH THE CONSTITUTION which states that the Comelec “Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments [CA] for a term of seven years without reappointment … Appointment to a vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.” (Article IX-C, Section 1, paragraph 2)

In early February this year during the congressional recess, Garcia and Neri were nominated/appointed ad interim commissioners, and Pangarungan, ad interim chairman of the Comelec. Their appointments were neither temporary nor acting in nature (hence, did not violate the cited constitutional provision).

According to settled jurisprudence, an ad interim appointment is permanent in nature because the term of office is fixed by law, that is, until the next adjournment of Congress. Within such period, they cannot be removed from their offices except for cause and after due process unlike temporary or acting appointees whose appointments can be terminated or withdrawn at any time with or without cause.

They thereupon assumed their offices and discharged their duties thereby contributing immensely to the peaceful and orderly holding of the last presidential elections. Unfortunately for them, the CA failed to act (or by-passed) their appointments. For this reason, their ad interim appointments lapsed upon the adjournment of Congress and they had to vacate their posts. Thereafter, unlike Pangarungan and Neri, Garcia was given another ad interim appointment, this time as chair, no longer as mere commissioner.

THE SUPEME COURT EN BANC HELD in Funa v. COA (April 24, 2012) that a member of any of the three constitutional agencies (Comelec, Commission on Audit, and Civil Service Commission) “who resigns after serving the Commission for less than seven years is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing chairman… provided… that the vacancy in the position of Chairman resulted from death, resignation, disability or removal by impeachment…” The Court explained that a “promotional appointment”—unlike a “reappointment” to the same position—is not barred by the Constitution.

Though Garcia did not “resign,” I believe that he can still validly serve as Comelec chair for the “unexpired portion of the term” of Pangarungan but his tenure or service as such chair should not exceed seven years, including his service as commissioner. Moreover, though the vacancy in the office of chair did not result from “death, resignation, disability or removal by impeachment,” but from the inaction of the CA, I believe that such inaction can be considered equal to and in pari materia with “death, resignation, disability or removal by impeachment.”

I think Neri can no longer be reappointed Comelec commissioner because of the express constitutional prohibition against “reappointment.” While not disqualified from being named chair, she could no longer aspire for that post because it is no longer vacant since it is now occupied by Garcia.

For the same reason, Pangarungan cannot be returned to his post because it is now occupied. And even if still vacant, he cannot be reappointed thereto because of the constitutional prohibition against a “reappointment” to the same position. He could be a commissioner if the President appoints him and he accepts.

GARCIA OPENLY ADMITS that as a former practicing lawyer specializing in election law, he had many clients including the President, several senators, representatives, governors, and mayors. The law allows him to inhibit when their cases or administrative matters are deliberated upon and decided by the Comelec.

Inhibition is neither novel nor unethical. Former solicitor generals who have been promoted to the Supreme Court inhibit, too, when cases involving the government (their “client”)—and they are quite numerous—are taken up and voted upon.

The appointment of officials who have extensive knowledge and experience because precisely they have appeared and argued before courts and quasi-judicial agencies is not legally abominable provided the officials concerned not only inhibit on matters involving their former clients but are also careful in desisting from influencing in any manner the remaining decision-makers.

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