Pimentel Jr.

vs Ermita
FACTS:
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.
RULING:
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 presidents 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 Presidents 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.