Philippines - DOJ says recent PGMA appointments legal and valid

Justice Secretary Alberto C. Agra today said that all appointments in executive department posts recently made by President Gloria Macapagal Arroyo are valid and legal, having been done in full observance of the law and the Constitution.

Agra, himself a professor of administrative law, pointed out that the presidential appointments were made on or before March 10, 2010, the last day for President Arroyo to appoint government officials without contravening the 60-day election ban on appointments.

Defending Malacañang, Agra dismissed as “bereft of legal basis” and purely “malicious talks,” criticisms questioning the legality of the presidential appointments.

“Even under the prohibitive period on presidential appointment under the Constitution, there are exemptions,” the new Justice Secretary said.

Among settled exemptions to the 60-day ban immediately prior to the next presidential election he added, are temporary appointments to executive positions “when continued vacancies therein will prejudice public service or endanger public safety.”

“This makes the appointment of an Officer-in-Charge for the Department of Energy to replace Secretary Angelo Reyes, valid. Having met the condition of temporariness, it cannot be denied that the continued vacancy will prejudice public service on account of the Mindanao power crisis and the worsening El Nino phenomenon,” Agra said.

He said that having no cabinet secretary at the helm of the Department of Energy will definitely undermine governance.

The justice secretary also said the prohibition on midnight appointments does not cover designations, details, transfers and re-assignments because all these acts presume previous or earlier appointments.

Another exemption to the ban is the appointments in the judiciary which was affirmed by the Supreme Court in a ruling last March 17, which gave the President the legal and valid premises, should she decide, to appoint the replacement for Chief Justice Reynato Puno who will retire on May 17, 2010.

“The Supreme Court reasoned, among others, that the establishment of the Judicial and Bar Council and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC, ensured that there would no longer be midnight appointments to the Judiciary,” Secretary Agra explained further on the SC appointments issue.

Agra said the prohibition applies only to the act of the President which is to appoint, and does not extend to other acts which are part of the overall appointment process. He was referring to events subsequent to the actual appointment, such as transmittal of the appointment papers and oath-taking.

“Please bear in mind that the appointing authority of the President in these cases of recent presidential appointments are absolute, as opposed to subjecting the same to assent or confirmation of another body,” the justice secretary said.

“It is long settled in the law of public officers that where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Thus, the transmission of appointment papers, the acceptance of the appointment and the administration of oaths are clearly subsequent appointment processes, and do not in any way affect the appointing authority of the President,” Secretary Agra explained. (PND)

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