Pimentel Vs Ermita

Temporary Appointments for members of the
Cabinet; Ad interim appointments.
SEN. AQUILINO PIMENTEL, et al., vs. EXEC. SECRETARY

EDUARDO ERMITA, et al., 472 SCRA 587
Carpio, J.
Facts:
1. On July 26, 2004, Congress commenced its Regular Session. On August 25, 2004, the
Commission on appointments was constituted;
2. While Congress was in session, the President issued appointments as Acting
Secretaries to the following:
a. Arthur Yap to the Department of Agriculture;
b. Alberto Romulo to the Department of Foreign affairs;
c. Raul Gonzales to the Department of Justice;
d. Florencio Abad to the Department of Education;
e. Avelino Cruz, Jr. to the Department of National Defense;
f. Rene Villa to the Department of Agrarian Reform;
g. Joseph Durano to the Department of Tourism; and
h. Michael Defensor to the Department of Environment and Natural Resources.
3. On September 8, 2004, the petitioners questioned said appointments as “Acting

Secretary” as UNCONSTITUTIONAL since Congress was in session and it was an act of
circumventing the power of the Commission on Appointments confirm the said
appointments. They claimed that “while Congress is in session, there can be no
appointments, whether regular or acting, to a vacant position of an office needing
confirmation by the Commission on Appointments, without first having obtained its
consent.”
4. On September 22, 2004, Congress adjourned its session;
5. On September 23, 2004, the president issued “ad-interim appointments” to the above-
named appointees to the departments to which they were previously appointed in an
acting capacity;
6. Thereafter, the respondents moved for the dismissal of this case on the ground that it is
now moot and academic considering the issuance of ad-interim appointments and
subsequent submission of the appointments of the above-named members of the
cabinet to the Commission on Appointments for confirmation.
I s s u e s:
1. Shall the case be dismissed since it is already moot and academic?

2. Do all the petitioners have the personality to sue?
3. Were the temporary appointments made while Congress was in session to positions
subject of confirmation by the Commission on Appointments unconstitutional?
H e l d:
1. While it is a rule that courts should not decide moot cases, the courts, as an
exception, will rule on it if it is capable of repetition yet evading review (TOLENTINO
VS. COMELEC, 420 SCRA 438; ACOP VS. SECRETARY GUINGONA, 383 SCRA
577; VIOLA VS. HON. ALUNAN III, 277 SCRA 409; ALUNAN III VS. MIRASOL, 276
SCRA 501).
2. Only those members of the Commission on Appointments have the personality to

sue and not the other petitioners who are not. While it was held in SANLAKAS VS.
EXECUTIVE SECRETARY, 421 SCRA 656 that members of Congress have the
personality to sue if the President’s act has the effect of impairing the powers of
Congress, the same is not applicable in this case. This is so because the
Commission on Appointments is independent from Congress itself. President
Arroyo’s issuance of acting appointments while Congress is in session impairs no
power of Congress.
3. The temporary appointments are valid. The power to appoint is essentially executive
in nature and the legislature may not interfere with the exercise of this executive
power except in those instances when the Constitution expressly allows it to
interfere. The essence of an appointment in an acting capacity is its temporary
nature. It is a stop-gap measure intended to fill an office for a limited time until the
appointment of a permanent occupant to the office. In case of vacancy in an office
occupied by an alter ego of the President, such as the office of a department
secretary, the President must necessarily appoint an alter ego of her choice as
acting secretary before the permanent appointee of her choice could assume office.
Congress, through a law cannot impose on the President the obligation of
automatically appointing the Undersecretary as her alter ego. He must be of the
President’s confidence and provided that the temporary appointment does not
exceed one (1) year.
There is a need to distinguish ad interim appointments and appointments in an

acting capacity. While both are effective upon acceptance, ad interim appointments are
extended only during the recess of Congress, whereas acting appointments may be
extended any time that there is a vacancy. Moreover, ad interim appointments are
submitted to the Commission on Appointments for confirmation or rejection; acting
appointments are not submitted to the Commission on appointments. Acting
appointments are a way of temporarily circumventing the need of confirmation by the
Commission on Appointments.
President’s Control over the executive department;

usurpation of legislative powers and infringement
on the citizen’s right to privacy

Pimentel Vs Ermita

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Temporary Appointments for members of the

Cabinet; Ad interim appointments.

SEN. AQUILINO PIMENTEL, et al., vs. EXEC. SECRETARY

3. On September 8, 2004, the petitioners questioned said appointments as “Acting

1. Shall the case be dismissed since it is already moot and academic?

2. Only those members of the Commission on Appointments have the personality to

There is a need to distinguish ad interim appointments and appointments in an

President’s Control over the executive department;

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