THREE YEARS AGO, a public debate on whether the appointment of then–Executive Secretary Vic Rodriguez required confirmation by the Commission on Appointments (CA) was brewing. My view then was simple: it did not.
Today, the same constitutional question resurfaces with the appointment of Secretary Ralph Recto as Executive Secretary, especially so that his appointment was made while Congress is in session as an offshoot of the abrupt resignation of former Chief Justice Lucas Bersamin as Executive Secretary.
Given Recto’s well-publicized involvement in the PhilHealth fund issue, it is almost certain that his appointment will trigger political skirmishes similar to the heat generated by Rodriguez’s reported role in the controversial Sugar Order No. 4. In both cases, the officials were merely executing the mandates of their principal.
Yet proximity to presidential decision-making has always made the Executive Secretary an easy lightning rod for institutional and political friction. This public discourse will bring us back to some constitutional big rocks.
‘Yes, Ralph Recto may immediately and validly discharge his functions as Executive Secretary, with full authority, even without CA confirmation … the Constitution does not require his appointment to pass through the CA … The ES is the President’s own sentinel. Who holds that post is for the President—and the President alone—to decide.’
THE CONSTITUTIONAL PRESCRIPTION
Section 16, Article VII of the 1987 Constitution enumerates with precision the officials whose appointments require CA consent:
• Heads of executive departments
• Ambassadors, public ministers, and consuls
• Officers of the armed forces from the rank of colonel or naval captain
• Officers whose appointments are vested in the President by the Constitution.
In Sarmiento III v. Mison (1987), the Supreme Court clarified that only this first group needs confirmation.
Where, then, does the Executive Secretary fall? Clearly, he is not a department head; neither is he an ambassador or consul. He is not a military officer, nor is his position one whose appointment is vested by the Constitution itself.
By administrative design and under the Administrative Code, the position of the ES is not included in the enumerated Executive Departments but is, in fact, only the head of an office, particularly the Executive Office, which is a part of the Office of the President.
Section 22, Chapter I, Title II, Book III of Executive Order No. 292—or the Administrative Code of 1987, provides:
“Section 22. Office of the President Proper. – (1) The Office of the President Proper shall consist of the Private Office, the Executive Office, the Common Staff Support System, and the Presidential Special Assistants/Advisers System; (2) The Executive Office refers to the Offices of the Executive Secretary, Deputy Executive Secretaries and Assistant Secretaries; xxx.”
In short, the Executive Office, which the ES heads, is merely a part of the Office of the President (OP) Proper. The Executive Secretary—despite enjoying Cabinet rank—does not head an executive department. Rank alone does not create a department, just as holding the salary grade of a Justice does not make one a member of the Supreme Court.
Thus, by plain reading and jurisprudence, the ES is not a CA-confirmable position.
WHY THE EXECUTIVE SECRETARY IS DIFFERENT
The ES is unlike any other Cabinet-level official. He is the President’s alter ego in the most literal sense—often the keeper of the presidential pen, the principal signatory “By authority of the President,” and the only official traditionally allowed to invoke presidential privilege when necessary.
He is the President’s gatekeeper. His office is an extension of the President’s own person.
To subject the ES to CA confirmation is, therefore, to empower Congress to intrude into the President’s inner circle—a clear affront to the separation of powers. The CA has constitutional authority to vet department heads, but not to decide who the President may trust as his closest aide.
If the President renamed the post “Secretary to the President,” or even “Head Executive Assistant,” with the same duties, prerogatives, and rank—would it suddenly become confirmable? It would not. The constitutional text does not allow such discretionary expansion.
THE CA’S ROLE IS EXECUTIVE IN NATURE—NOT LEGISLATIVE
Though composed of legislators, the CA is not a legislative body. It does not make laws, interpret them, or adjudicate rights. In the book of former Supreme Court Justice Antonio E. Nachura, “The Commission on Appointments is independent of the two Houses of Congress; its employees are not, technically, employees of Congress. It has the power to promulgate its own rules of proceedings.” (Outline Reviewer in Political Law, 2016 Ed., p. 323)
And as the early case of Philippines v. Springer teaches us, if a function is neither legislative nor judicial, it must be executive. The CA performs an executive function: assessing the merit and fitness of nominees whose posts the Constitution explicitly places under its review.
That said, it cannot compel the President—the Chief Executive—to submit nominees not contemplated by the Constitution. To do so would be to rewrite the appointment clause—a power not granted to Congress or the CA.
Even the CA’s own rules, which assume it has committee jurisdiction over the ES, cannot outrank the Constitution. Rules cannot enlarge constitutional powers.
ASYMMETRIES IN THE CONFIRMATION SYSTEM ARE DELIBERATE
Our appointment structure contains many apparent oddities. Among them:
• A consul must be confirmed, but a DFA undersecretary need not be.
• An Army colonel needs CA consent, but a DND undersecretary does not.
• CHR commissioners are not confirmed, but CSC, COMELEC, and COA commissioners are.
Yet these asymmetries are not mistakes. They are deliberate constitutional choices. The framers of the Constitution are presumed to know these oddities.
So too is the non-confirmable nature of the Executive Secretary.
THE BOTTOM LINE
Yes, Ralph Recto may immediately and validly discharge his functions as Executive Secretary, with full authority, even without CA confirmation.
As intimated earlier, the Constitution does not require his appointment to pass through the CA. Jurisprudence does not require it. The administrative structure of government does not require it. And the doctrine of separation of powers forbids it.
The Executive Secretary is the President’s own sentinel. Who holds that post is for the President—and the President alone—to decide.
My take.