It’s almost an article of faith that a commissioner of the Commission on Elections (Comelec) cannot be reappointed as chairman in case of a vacancy in that position. This belief is rooted in the 1986 Constitution, which explicitly provides that
“[t]he chairman and the commissioners shall be appointed by the President with the consent of the Commission on Appointments [CA] for a term of seven years without reappointment.”
For many, and for a long time, this particular provision was considered uncontroversial and as clear as day. In fact, since I joined the Comelec in 2000, I’ve had occasion to repeat the exact same principle at least twice. Imagine everyone’s surprise then when, late last week, the news broke that the Chief Executive had nominated a sitting commissioner to succeed the recently resigned Comelec chairman.
“Can that be done?” everyone asked.
The Supreme Court itself provided the answer to that when, in 2012, it promulgated its ruling in Funa v. Villar (GR 192791), holding that a “a commissioner who resigns after serving in the commission for less than seven years, is eligible for an appointment to the position of chairman for the unexpired portion of the term of the departing chairman,” provided “that the aggregate period of the length of services as commissioner and the unexpired period of the term of the predecessor will not exceed seven years and that the vacancy in the position of chairman resulted from death, resignation, disability or removal by impeachment.”
In other words, a sitting commissioner can be tapped by the President to assume the chairmanship, if that commissioner vacates his original position, and if the total time he will be spending on the Commission—the number of years spent as commissioner, plus the number of years he will be serving as chairman—comes out to no more than seven years.
But what about the provision that specifically prohibits reappointment?
Funa v. Villar answered that, too. According to the court, the “reappointment” spoken of by the Constitution simply referred to a person getting appointed to the same position again. Thus, a commissioner cannot be named commissioner a second time. In contrast, moving from one position to another, say from commissioner to chairman, would actually be a new appointment. In the strict legal sense therefore, the court said, that couldn’t be considered a reappointment, as prohibited by the charter.
After hearing these answers, the conversation circled back around to “So is Commissioner Sheriff Abas the new chairman?”
Well, technically, not yet.
First of all, he wasn’t “appointed,” but nominated. That’s very clear from the letter sent by the Chief Executive, dated November 22. In that letter, which contains very specific language, the President informed Abas that he had been “nominated,” for the position of chairman of the Comelec.
The distinction between being appointed and being nominated is a critical one—which, judging from the news stories the following day, was entirely lost on headline writers. A nominee only assumes office “upon consent by the Commission on Appointments (CA),” just as Abas was informed in the President’s letter. Appointees, on the other hand, generally ad interim (or appointed while Congress is not in session), assume office right away subject to confirmation of their appointment by the CA; without that confirmation, the ad interim appointee needs to vacate the office.
Going by the Chief Executive’s letter, it is clear that the commissioner must wait on the action of the CA, consenting—not “confirming”—to his appointment before he can take the chairmanship of the Comelec.
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