The power to appoint vested in the President includes the power to make temporary appointments, unless he is otherwise specifically prohibited by the Constitution or by the law, or where an acting appointment is repugnant to the nature of the office involved

I.               Nature of petitioner’s appointment

a.                 A staggered term of office is not inconsistent with an acting appointment

The petitioner asserts that contrary to what appears in his appointment paper, the appointment extended to him was really a regular appointment; thus, he cannot be removed from office except for cause. The petitioner argues that the appointment of an acting NAPOLCOM Commissioner or, at the very least, the “successive appointments” of NAPOLCOM Commissioners in an acting capacity contravenes the safeguards that the law – R.A. No. 6975[33] – intends through the staggered term of office of NAPOLCOM Commissioners.

Notably, the petitioner does not expressly claim that he was issued a permanent appointment; rather, he claims that his appointment is actually a regular appointment since R.A. No. 6975 does not allegedly allow an appointment of a NAPOLCOM Commissioner in an acting capacity.

At the outset, the petitioner’s use of terms needs some clarification. Appointments may be classified into two: first, as to its nature; and second, as to the manner in which it is made.[34]

Under the first classification, appointments can either be permanent or temporary (acting). A basic distinction is that a permanent appointee can only be removed from office for cause; whereas a temporary appointee can be removed even without hearing or cause.[35] Under the second classification, an appointment can either be regular or ad interim. A regular appointment is one made while Congress is in session, while an ad interim appointment is one issued during the recess of Congress. In strict terms, presidential appointments that require no confirmation from the Commission on Appointments[36] cannot be properly characterized as either a regular or an ad interim appointment.

In this light, what the petitioner may have meant is a permanent (as contrasted to a temporary or acting) appointment to the office of a NAPOLCOM Commissioner, at least for the duration of the unexpired portion of his predecessor (Roces).

          Generally, the power to appoint vested in the President includes the power to make temporary appointments, unless he is otherwise specifically prohibited by the Constitution or by the law, or where an acting appointment is repugnant to the nature of the office involved.[37] The President’s power to issue an acting appointment is particularly authorized by the Administrative Code of 1987 (Executive Order No. 292).

CHAPTER 5

POWER OF APPOINTMENT

Section 16. Power of Appointment. – The President shall exercise the power to appoint such officials as provided for in the Constitution and laws.

Section 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)    xxx

(3)    In no case shall a temporary designation exceed one (1) year.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to discharge those functions pending the selection of a permanent or another appointee. An acting appointee accepts the position on the condition that he shall surrender the office once he is called to do so by the appointing authority. Therefore, his term of office is not fixed but endures at the pleasure of the appointing authority. His separation from the service does not import removal but merely the expiration of his term — a mode of termination of official relations that falls outside the coverage of the constitutional provision on security of tenure[38] since no removal from office is involved.

The power to appoint is essentially executive in nature[39] and the limitations on or qualifications in the exercise of this power are strictly construed.[40] In the present case, the petitioner posits that the law itself, R.A. No. 6975, prohibits the appointment of a NAPOLCOM Commissioner in an acting capacity by staggering his term of office. R.A. No. 6975, on the term of office, states:

Section 16. Term of Office. – The four (4) regular and full-time Commissioners shall be appointed by the President upon the recommendation of the Secretary. Of the first four (4) commissioners to be appointed, two (2) commissioners shall serve for six (6) years and the two (2) other commissioners for four (4) years. All subsequent appointments shall be for a period of six (6) years each, without reappointment or extension.

Generally, the purpose for staggering the term of office is to minimize the appointing authority’s opportunity to appoint a majority of the members of a collegial body. It also intended to ensure the continuity of the body and its policies.[41] A staggered term of office, however, is not a statutory prohibition, direct or indirect, against the issuance of acting or temporary appointment. It does not negate the authority to issue acting or temporary appointments that the Administrative Code grants.

Ramon P. Binamira v. Peter D. Garrucho, Jr.,[42] involving the Philippine Tourism Authority (PTA), is an example of how this Court has recognized the validity of temporary appointments in vacancies in offices whose holders are appointed on staggered basis. Under Presidential Decree (P.D.) No. 189,[43] (the charter of the PTA, as amended by P.D. No. 564[44] and P.D. No. 1400[45]), the members of the PTA’s governing body are all presidential appointees whose terms of office are also staggered.[46] This, notwithstanding, the Court sustained the temporary character of the appointment extended by the President in favor of the PTA General Manager, even if the law[47] also fixes his term of office at six years unless sooner removed for cause.

Interestingly, even a staggered term of office does not ensure that at no instance will the appointing authority appoint all the members of a body whose members are appointed on staggered basis.

The post-war predecessor of the NAPOLCOM was the Police Commission created under R.A. No. 4864.[48] Pursuant to the 1987 constitutional provision mandating the creation of one national civilian police force,[49] Congress enacted R.A. No. 6975 and created the NAPOLCOM to exercise, inter alia, “administrative control over the Philippine National Police.” Later, Congress enacted R.A. No. 8551 which substantially retained the organizational structure, powers and functions of the NAPOLCOM.[50] Under these laws, the President has appointed the members of the Commission whose terms of office are staggered.

Under Section 16 of R.A. No. 6975, the NAPOLCOM Commissioners are all given a fixed term of six years (except the two of the first appointees who hold office only for four years). By staggering their terms of office however, the four regular commissioners would not vacate their offices at the same time since a vacancy will occur every two years.

Under the NAPOLCOM set up, the law does not appear to have been designed to attain the purpose of preventing the same President from appointing all the NAPOLCOM Commissioners by staggering their terms of office. R.A. No. 6975 took effect onJanuary 1, 1991. In the usual course, the term of office of the first two regular commissioners would have expired in 1997, while the term of the other two commissioners would have expired in 1995. Since the term of the President elected in the first national elections under the 1987 Constitution expired on June 30, 1998, then, theoretically, the sitting President for the 1992-1998 term could appoint all the succeeding four regular NAPOLCOM Commissioners. The next President, on the other hand, whose term ended in 2004, would have appointed the next succeeding Commissioners in 2001 and 2003.

It is noteworthy, too, that while the Court nullified the attempt of Congress to consider the terms of office of the then NAPOLCOM Commissioners as automatically expired on the ground that there was no bona fide reorganization of the NAPOLCOM,[51] a provision on the staggering of terms of office is evidently absent in R.A. No. 8551 – the amendatory law to R.A. No. 6975. Section 7 of R.A. No. 8551 reads:

Section 7. Section 16 of Republic Act No. 6975 is hereby amended to read as follows:

“SEC. 16. Term of Office. – The four (4) regular and full-time Commissioners shall be appointed by the President for a term of six (6) years without re-appointment or extension.”

Thus, as the law now stands, the petitioner’s claim that the appointment of an acting NAPOLCOM Commissioner is not allowed based on the staggering of terms of office does not even have any statutory basis.

Given the wide latitude of the President’s appointing authority (and the strict construction against any limitation on or qualification of this power), the prohibition on the President from issuing an acting appointment must either be specific, or there must be a clear repugnancy between the nature of the office and the temporary appointment. No such limitation on the President’s appointing power appears to be clearly deducible from the text of R.A. No. 6975 in the manner we ruled in Nacionalista Party v. Bautista.[52]  In that case, we nullified the acting appointment issued by the President to fill the office of a Commissioner of the Commission on Elections (COMELEC) on the ground that it would undermine the independence of the COMELEC. We ruled that given the specific nature of the functions performed by COMELEC Commissioners, only a permanent appointment to the office of a COMELEC Commissioner can be made.

Under the Constitution, the State is mandated to establish and maintain a police force to be administered and controlled by a national police commission. Pursuant to this constitutional mandate, the Congress enacted R.A. No. 6975, creating the NAPOLCOM with the following powers and functions:[53]

Section 14.    Powers and Functions of the Commission. — The Commission shall exercise the following powers and functions:
(a)    Exercise administrative control and operational supervision over the Philippine National Police which shall mean the power to:

xxxx
b)    Advise the President on all matters involving police functions and administration;
c)    Render to the President and to the Congress an annual report on its activities and accomplishments during the thirty (30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of police agencies in the municipalities, cities and provinces throughout the country, and recommendations for appropriate remedial legislation;

d)    Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crime prevention program; and

e)    Perform such other functions necessary to carry out the provisions of this Act and as the President may direct. [Emphasis added.]

We find nothing in this enumeration of functions of the members of the NAPOLCOM that would be subverted or defeated by the President’s appointment of an acting NAPOLCOM Commissioner pending the selection and qualification of a permanent appointee. Viewed as an institution, a survey of pertinent laws and executive issuances[54] will show that the NAPOLCOM has always remained as an office under or within the Executive Department.[55] Clearly, there is nothing repugnant between the petitioner’s acting appointment, on one hand, and the nature of the functions of the NAPOLCOM Commissioners or of the NAPOLCOM as an institution, on the other.

http://sc.judiciary.gov.ph/jurisprudence/2011/march2011/191560.htm

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Executive, NAPOLCOM, Political Law and tagged . Bookmark the permalink.

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