4.

Aquilino Pimentel vs
Executive Secretary Eduardo
Ermita ( 472 SCRA 587)

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 president’s 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 President’s 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.