Yes or no? Maybe
Last Monday, Davao Rep. Prospero Nograles raised what seemed like a sensible suggestion. The new leader of the House panel in the Commission on Appointments suggested that, beginning with the first session of the 14th Congress, the CA expedite the entire confirmation process by limiting itself to either approving an official nominated by Malacañang, or rejecting the appointment outright.“There will be only yes or no and no maybes in acting on government appointments,” Nograles said. “If possible, we will avoid the practice of bypassing appointments, which will just allow the President to reappoint [an official] all over again. It will be either he is in or out.”
Sounds reasonable, doesn’t it? The practice of bypassing an appointment allows the President to retain an official whose performance or loyalty she values, even though the members of Congress do not share the President’s high regard for the appointee, through the simple expedient of re-appointment.
Following the disclosure of former Rep. Herminio Teves, however, that some of his colleagues in the House who sat in the CA during the 13th Congress used their position to extort enormous amounts of money from the presidential appointees, the practice of bypassing has assumed a more sinister color. Now there are more and more of us who think: If the CA bypasses the appointment of a nominee, that nominee becomes vulnerable -- or is deliberately rendered vulnerable -- to extortion attempts by CA members.
Nograles’ yes-or-no proposal was designed precisely to minimize that vulnerability. “The new CA must confirm or reject the appointees at the shortest time possible and not keep them hanging,” he said.
Well and good, if the 12 members of the House delegation can persuade the 12 members of the Senate contingent in the CA. A yes-or-no approach to appointments will reinvigorate the constitutional principle that the President’s immense power to appoint requires the tempering consent of both chambers of Congress.
The President’s power is rooted in Article VII, Section 16, the first sentence of which reads: “The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.” Another provision later in the section vests the President with the power “to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.”
A close reading of these constitutional provisions tells us that the legislature’s share of the appointing power is essentially negative. That is to say, it can temper the executive’s prerogatives in appointing key officials only by disapproving her appointments. This is a responsibility that must be exercised with great care; after all, in our system of government, we must allow the President as much political elbow room as she needs to choose those she would want to work with or work in her stead.
But precisely because of the CA’s longstanding practice of bypassing appointments it does not like, its consent, its approval of appointments, has been devalued. The President simply renews the appointment of, say, a bypassed Cabinet secretary; indeed she has done so in the case of a plurality of her Cabinet appointments since 2001.
The CA’s real power lies in rejecting a nominee outright, or in disapproving an ad interim appointment. Thus, Nograles is half right: Taking away the uncertainty reduces an appointee’s vulnerability to extortion. (Teves’ own son, Finance Secretary Margarito Teves, was first appointed in July 2005; two years of waiting must have raised the price of his confirmation to a stratospheric P5 million.)
The other half of the problem, however, remains. Bypassing an appointment has been used in the past to signal the legislature’s displeasure with a particular appointment. Without that option, the CA faces a real choice: To be a rubber stamp, or to be truly independent. Can the CA, can Nograles himself, afford to say no to the President?
