Choosing his team

President Rodrigo Roa Duterte has been busy appointing people to office. The flurry of issuances from Malacañang has us playing catch up in getting familiar with our newest public officials.

Only one constitutional officer is tasked with carrying out the Executive power. James Madison wrote that “... the Constitution has invested all executive power in the President, ... the Legislature has not to diminish or modify his executive authority ...” The U.S. Constitution’s founding father goes on to declare what is most constitutive of Executive power: “if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.”

To make appointments. To observers, appointments to the Cabinet are considered the President’s most crucial (especially the economic team of the next administration). These positions provide unelected office holders with the greatest leeway to make a difference. Though the President exercises the power of control, he can’t possibly second guess his men’s choices every time. Cabinet officials, once given the general directive, try to be compliant in the judgments they make. Unless egregiously questionable, their decisions are hardly ever reversed. The fiction that makes this possible goes by different names: the alter ego doctrine, the principle of qualified political agency. Together with the insulating doctrine of executive privilege, these are adjuncts of the theory of a unitary executive.

A contending view sees the appointment of Supreme Court justices as more significant. Given the enormous power wielded by members of the High Court and the opportunity to serve until 70, their selection rightly ranks up there among the President’s important acts. With nothing more than the constitutional benchmarks of competence, integrity, probity and independence to guide him, every Supreme Court choice is checks and balances in action and an insight into the President’s long term policy vision on gut issues.

Appointments to the constitutional commissions are an equally critical exercise of this supreme power. These offices are non-partisan by design, with elaborate constitutional limitations as guarantee. They are not to hold any other office or employment; practice any profession or manage or control any business affected by the functions of their office; be financially interested in any contract with, or franchise or privilege granted by, the Government. Hence, utmost care is taken to select qualified men and women with the fortitude to act independently.

The President finally filled up the vacancies in the Commissions. From February 2020 when Civil Service Commissioner Leopoldo Valderosa, Jr. and Audit Commissioner Jose Fabia ended their terms, the Commission on Audit (COA) and the Civil Service Commission (CSC) had been operating below full strength, with only a two-member rotation. Including the three Chairpersons to replace those whose terms expired, PRRD appointed a total of seven constitutional commissioners in the last two months: 3 to the COMELEC, 2 each to the COA and CSC.

Not gordian. The selections have been called out as midnight appointments. This is absurd. The Constitutional Presidential appointments ban ended this Wednesday, two months to the day of the next election. Time and again, the Supreme Court has intoned that law, like nature, abhors a vacuum in public service. If and when the President is ready to fill up the position, nothing other than the Constitution’s command should deter him. PRRD has exactly 111 days including today left in his term of office. We don’t expect him to govern all by himself until June 30.

Another cassus belli is the independence of the appointees. Some have used the occasion to invoke that President Ferdinand Marcos himself deferred to public pressure in appointing eminent former Congressman Ramon Felipe, Jr. of the opposition as Comelec Commissioner. The subtext is that popular approval should be the overarching consideration in appointments.

No less than US Chief Justice William Rehnquist articulated that there is “no reason in the world” why Presidents should not appoint someone sympathetic to their political principles. We agree. Indeed, the popularly elected President has a say in the composition of the Commissions and, indirectly, in their decisions. When he appoints, he is actually expressing the people’s will as dictated by the Constitution itself.

Top marks. The President has obliged the public with suitable choices. At the Comelec, Atty. George Garcia is singled out in discussions on conflict of interest, having lawyered for Mayor Isko Moreno and Senators Manny Pacquiao, Ping Lacson and Ferdinand Marcos Jr. in the past. But he has shut down those concerns by immediately recusing himself from the pending cases against Senator Marcos Jr. The Commissioner is highly qualified for this challenge of leadership given his mastery of election laws and Comelec rules. He made a lucrative career probing loopholes to his clients’ advantage. Now, he gets to plug those loopholes. Garcia is law professor in several law schools and was the former Law dean of Pamantasan ng Lungsod ng Maynila.

Easily, the appointment of Cabinet Secretary, IATF co-chair and acting presidential spokesman Karlo Nograles as Chair of the CSC is the highlight of this appointment season. Chairman Nograles, Ateneo lawyer and 3-term Congressman, will infuse the civil service with his wealth of experience from both the professional executive department and the political legislative department. As a very capable House appropriations committee chair, he matriculated on Civil Service 101. His dynamism should suffuse governance with a sixth E, energy to enhance the 3 Es of administration: efficiency, effectiveness, economy and the 2 Es of public ethos: equity and ethics. Colleagues will attest to the unalloyed public service orientation of the man. The CSC has never had a Chair as experienced and qualified. If government service needed an image model to inspire more recruits, the President could not have made a better choice.

The Commission on Appointments (CoA) will have its say and will provide a soapbox for oppositors at the confirmation hearings. As things stand, there appear to be no cogent reasons for the COA’s outright rejection of any of the President’s ad interim appointees.