DEMAREE J.B. RAVAL
Elias Yusoph: Garcillano deja vu
Sunday, 02 08, 2009
The question as to whether or not Marawi City prosecutor Elias Yusoph may now assume his post as elections commissioner brings to mind the curious case of former commissioner Virgilio Garcillano. I wrote about the case of Garcillano in this column on February 29, 2004, and the arguments I cited then in reference to Garcillano apply with equal force now to the case of Yusoph: that nominees to the Commission on Elections (Comelec) issued ad interim appointments cannot take their seats unless and until they are confirmed by the Commission on Appointments (CA).
This requirement – consent by the CA before an elections commissioner can start to work - is not without reason.
An ad interim appointment is, by its very nature, a temporary appointment. An elections commissioner with a temporary appointment would naturally be expected to suck up to the appointing authority, in exchange for a permanent appointment or his continued re-appointment. We have seen such servility and obsequiousness in Garcillano, who had taken his seat in the Comelec without the consent of the CA. In the disqualification case against Fernando Poe, Jr. before the Supreme Court, he filed his position paper post-haste, even before he was supposed to, thereby exposing his servility to the appointing authority upon whom his subsequent permanent appointment depended. He had no security of tenure at that time; ergo, he was expected to toe whatever line drawn for him by the appointing authority. During the oral arguments at the Supreme Court, a member of the court even castigated Garcillano for his precipitate and unsolicited act of taking a stand contrary to the institutional stand of the Comelec on a 5-0 vote that upheld the qualification of FPJ to stand for election as president. This dog-eared eagerness of Garcillano should have already rung alarm bells
The Constitution is very clear: In no case shall any member of the Comelec be appointed in a temporary or acting capacity. In other words, the three-step serial process of nomination-consent-appointment must be strictly observed. But what do we have here – a rerun? President Gloria Arroyo, in her accustomed arrogance that she could reprise the maneuver she did for Garcillano on February 7, 2004, did the same to Yusoph on January 12, 2009. Now Yusoph is raring to take his seat in the Comelec. Thankfully, Chairman Jose Melo and the rest of the commissioners are opposed to Yusoph’s assumption, albeit for a reason different from my invocation of Article IX(C), Section 1(2) of the Constitution.
Borrowing the words of the Supreme Court in Matibag vs. Benipayo (380 SCRA 149; 2002), the issuance of the appointment of Yusoph and the latter’s insistence to take his seat “renders inutile the confirming power of the CA.”
While it is true, as general rule, that the Constitution grants the President the power to make ad interim appointments that do not require consent from the CA for their validity and effectivity, this should never be made applicable to the explicit provision regarding appointments to the Comelec. It is well-settled that should there be any conflict arising between general provisions and special provisions of a law or the Constitution, the special provisions should prevail.
The Constitution categorically states that the appointment of the commissioners of the Comelec must be with the consent of the CA. Ad interim appointments – which are effective immediately without the consent of the CA, and they will in fact lapse if no such consent is obtained by the next adjournment of the CA - do not satisfy the requirement of the Constitution in regard to appointments to the Comelec. Why is Malacaňang so dense as to disregard this simple and basic requirement of consent (confirmation) by the CA before the appointment of Yusoph, or any elections commissioner for that matter, can become effective?
Five years ago we expressed our alarm in regard to Garcillano’s assumption to office on the basis of his ad interim appointment. We warned then – given Garcillano’s reputation - that to allow him to sit at the Comelec without going through the crucible of the CA is to let him wreak havoc on the electoral process. We were proven right in this, most unfortunately.
Now, there are talks about Yusoph’s closeness to Garcillano, who, not surprisingly, is reported to have generously put in his strong and indispensable recommendation for the appointment. We all hope that Yusoph is not on an error-filled mission like his patron.
In 2004, soon after Garcillano was extended an ad interim appointment, a group of young lawyers calling themselves Pro-Con(stitution) hurried to the Supreme Court to contest Garcillano’s appointment. They wanted to stop him from taking his seat at the Comelec, precisely invoking Article IX(C) , Section 1(2) of the Constitution. Unfortunately, the Supreme Court did not act on the petition and, as they say, the rest is sordid history. Garcillano did go on to take on his error-filled mission for the appointing authority.
Imagine if you will: Had the Supreme Court prohibited Garcillano from taking his seat, we would be much better off now under a different leadership. Had Garcillano been made to go through the gauntlet of the CA, we would not have to go through that very unfortunate and despicable chapter in our electoral history.
A familiar line comes to mind and is worth rephrasing: Those who do not remember the mistakes of the past are forever doomed to repeat them.
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