COA Appointment: 7-Year Aggregate Rule

SC Holds Unconstitutional Appointment of Reynaldo A. Villar as COA Chair

sc.judiciary.gov.ph

The Supreme Court recently declared unconstitutional the appointment of then Commission on Audit (COA) Commissioner Reynaldo A. Villar to the position of COA Chair to replace Guillermo N. Carague who ended his seven-year term with the Commission.

In a 30-page decision penned by Justice Presbitero J. Velasco, Jr., the Court En Banc held that Villar’s appointment violated sec. 1(2), Art. IX(D) of the Constitution which reads: “The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment….Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor.”

“[T]hen President Macapagal-Arroyo could not have had, under any circumstance, validly appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was not legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the corresponding appointment would effectively breach the clear purpose of the Constitution of giving to every appointed so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA Commissioner like respondent Villar who serves for a period less than seven years cannot be appointed as chairman when such position became vacant as a result of the expiration of the 7-year term of the predecessor (Carague). Such appointment to a full term is not valid and constitutional, as the appointee will be allowed to serve more than seven years under the constitutional ban,” ruled the Court.

The Court construed Sec. 1(2), Art. IX(D) of the Constitution as follows:

The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven years; an appointment for a lesser period is void and unconstitutional; the appointing authority cannot validly shorten the full term of seven years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution;
Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be for the unexpired portion of the term of the predecessors, but such appointments cannot be less than the unexpired portion as this will disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D);

Members of the Commission who were appointment for a full term of seven years and who served the entire period, are barred from reappointment to any position in the Commission;
A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment to the position of Chair for the unexpired portion of the term of the departing chair. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service as commissioners and the unexpired period of the term of the predecessor will not exceed seven years and provided further that the vacancy in the position of Char resulted from death, resignation, disability or removal by impeachment; and that

Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.

• On February 15, 2001, then President Gloria Macapagal-Arroyo appointed Carague as COA Chair for a term of seven years, pursuant to the 1987 Constitution. 
• On February 7, 2004, Arroyo appointed Villar as third COA member for a seven-year term starting February 2, 2004 until February 2, 2011. 
• Following Carague’s retirement in 2008, Villar was designated as acting COA Chair and on the same year was nominated and appointed COA Chair. 

Villar, whose appointment was confirmed by the Commission on Appointments on June 11, 2008, was to serve as COA Chair, as expressly indicated in the appointment papers, until the expiration of the original term of his office as COA Commissioner or on February 2, 2011. However, Villar raised the matter to the High Court, arguing that his term of office as COA Chair is up to Feb 2, 2015, or seven years reckoned from February 2, 2008 when he was appointed to that position.

While his petition in the Court was still pending, Villar wrote President Benigno S. Aquino III on February 22, 2011 signifying his intention to step down from office upon the appointment of his replacement. Subsequently, he vacated his post upon appointment of Ma. Gracia Pulido-Tan.

While the case has been deemed moot due to the intervening appointment of Tan and resignation of Villar, the Court considered the instant case as falling within one of the requirements for review of a moot and academic case since the case is “of transcendental importance, since it obviously has ‘far-reaching implications,’ and there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous cases.”

Senior Justice Antonio T. Carpio and Justice Jose Catral Mendoza wrote separate concurring and dissenting opinions. (See http://sc.judiciary.gov.ph/jurisprudence/2012/april2012/192791_mendoza.htm)

Justice Carpio voted to grant the petition and to declare Villar’s appointment as Acting Chair and Chair of COA unconstitutional, adding that Villar’s appointment as COA Chair is a reappointment prohibited by the Constitution. He opined that in order for Villar to take the position of COA Chair, he had to cut short his seven-year term, which means Villar resigned as COA Commissioner. After such resignation, Villar could no longer be reappointed to the COA, either as Commissioner or Chair.

For his part, Justice Mendoza opined that the promotion of Villar was legal but he could serve up to February 15, 2011 only because his tenure should not exceed seven years. He said that “The [majority] position that a commissioner cannot be promoted in case of expiration of a term of chairman has no clear and concrete constitutional basis. There is nothing at all in the subject constitutional provision which expressly or implied restricts the promotion of a commissioner in situations where the tenure of his predecessor is cut short by death, disability, resignation or impeachment only.” (GR No. 192791, Funa v. COA Chair, April 24, 2012 - http://elibrary.judiciary.gov.ph/decisions.php?doctype=Decisions%20/%20Signed%20Resolutions&docid=13403523741899327079)

Emphasis and links provided by Broker Rem Ramirez 0922.883.9308 broker.ramirez@yahoo.com.ph

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