Wednesday, November 18, 2009

Saludo Bows Out

Malacañang is shopping for a new Chairman of the Commission on Civil Service now that the rejection of Mr. Ricardo Saludo's nomination has become final.

It is rare for the Commission to reject a nomination. Most of the time the Commission simply bypasses an ad interim appointment and leaves the President free to renew the nomination. Now Saludo has the dubious honor of being the recipient of a rare rejection. And a rejected nomination may not be renewed.

What has happened to Saludo is illustrative of how powerful the Commission on Appointments is. Saludo's nomination was rejected on the ostensible reason that he is not a lawyer. There is good reason for saying that the Chairman of the Commission on Civil Service should be a lawyer because the Commission makes sensitive quasi-judicial decisions. Significantly, however, unlike in the case of the Commission on Elections and the Commission on Audit, the Constitution does not prescribe being a lawyer as a qualification for appointment to the Civil Service Commission.

A Chairman of the Commission on Elections must not only be a lawyer but must be a lawyer of extensive experience as lawyer or judge. And at least one member of the Commission on Audit must be a lawyer. No similar requirement is demanded of a CSC Chairman or member. For that reason nobody challenged the nomination as Chairpersons of Ms. Alma de Leon, Ms. Patricia Sto. Tomas and Ms. Karina David, none of whom was a lawyer. De Leon, Sto. Tomas and David all served their full term undisturbed. Saludo’s case is unique.

The Commission on Appointments is part of the constitutional structure for the appointment process involving a limited number of sensitive positions. The Commission is meant to be a check on the appointing power of the President.

The President's power to appoint is very broad. The only limitation on the choice of appointees is that a person must possess the legal qualifications for the office. The choice made by the President might have all the legal qualifications for the office but might be sadly lacking in all other qualities needed for the performance of the functions of the office. The President's act nevertheless would remain valid. It is in such situation that the Commission on Appointments can perform the salutary function of rejecting the President's choice. And, of course, with greater reason the Commission must reject those who do not possess the needed qualifications.

The discretion of the Commission, for its part, is also as broad as the appointing discretion of the President. There is nothing in the Constitution which says that the Commission may reject only those who are not legally qualified. Saludo was legally qualified; but that did not insulate him against rejection. We can speculate about the unstated reasons for Saludo's rejection, but it will not change things. All that the Constitution says is that for certain classes of appointment the Commission must give its consent; absent such consent, the appointment is dead.

Just as the President's broad appointing power can be harmful to public welfare, so also is the broad rejecting power of the Commission. This is partly the reason why during the deliberations of the Constitutional Commission of 1987 there was a long debate on the pros and cons of restoring the Commission on Appointments. There was a Commission on Appointments under the 1935 Constitution but none under the 1973 Constitution. The Commission will surely be a subject of debate again when the 1987 Constitution is finally amended.

The restoration of the Commission on Appointments in the 1987 Constitution was partly a reaction to the experience under the Marcos regime when there was no Commission on Appointments or a similar body to check presidential discretion. But the restoration did not just copy the way it was under the 1935 Constitution. The 1987 Constitution has excluded appointments to the judiciary from the reach of the Commission on Appointments. Instead the devise invented for checking the power of the President is the Judicial and Bar Council. The expectation was that the Judicial and Bar Council would be free from undue pressure from political interests.

Has the expectation been fulfilled? Consider the present composition of the Judicial and Bar Council. The Chief Justice is ex-officio Chairman and the Secretary of Justice and a member of Congress are ex officio members. The other members, appointed by the President with the consent of the Commission on Appointments, are a representative of the Integrated Bar, a professor of law, a retired justice and a representative of the private sector. The Council has had a spotty record in the past but efforts are being made to make it function more effectively. Indeed, while the composition of the Council may not be totally political as the Commission on Appointments is, there are obvious cracks in the wall.

The verdict on the effectiveness of the Judicial and Bar Council as an instrument for assuring the nation an army of judges and justices endowed not only with competence but also with integrity is not yet out. The Judicial and Bar Council will most certainly be a subject of debate when the time for constitutional amendment comes.

In the end, however, whatever dissatisfaction people might have with the Commission on Appointments or with the Judicial and Bar Council, how the two institutions can work or fail to work only shows that structures are not everything. It is people who make the difference. This is also true about forms of government.

19 October 2009

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