Is it legal to name Sheriff Abas Comelec chair?

MANILA, Philippines – Legal questions hounded the decision of President Rodrigo Duterte to nominate Sheriff Abas, a sitting poll commissioner, as Commission on Elections (Comelec) chair.

Can Duterte appoint Abas to another position in the Comelec? Doesn't the law prohibit reappointments in constitutional bodies like this?

Comelec spokesman James Jimenez on Friday, November 24, pointed reporters to the Supreme Court (SC) ruling that answers these questions. 

This is the case of Dennis Funa against former Commission on Audit (COA) chair Reynaldo Villar, for which the SC issued a ruling on April 24, 2012. 

The ruling applies to constitutional commissions – Comelec, COA, and the Civil Service Commission (CSC).

The SC said, "A commissioner who resigns after serving in the Commission for less than 7 years is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing chairman."

It is unclear if Abas has already resigned as commissioner.

The High Court added in 2012, "Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service as commissioner and the unexpired period of the term of the predecessor will not exceed 7 years and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability, or removal by impeachment."

Brillantes weighs in

In a phone interview with Rappler, former Comelec chair Sixto Brillantes Jr said he sees no problem with the nomination of Abas as elections chief.

Brillantes, a sought-after election lawyer, also cited the case involving Funa and Villar.

"Puwede siyang i-promote from commissioner to chairman," said Brillantes, referring to Abas. (He can be promoted from commissioner to chairman.)

He said that in the case of Abas, being Comelec chairman is not a reappointment but "a new appointment." This means Abas needs to go through the Commission on Appointments (CA) again.

Brillantes said the case of Abas is creating issues only because nothing similar has happened in the past. 

"Kaya nagkakaroon ng isyu sa Comelec, kasi hindi pa nangyayari sa Comelec eh. Maski kailan, kapag tiningnan mo ang history ng Comelec, wala pang commissioner na naging chairman," said Brillantes.

(This is creating issues in Comelec only because it has never happened in Comelec. Not once, if you look at the history of Comelec, has a commissioner become a chairman.)

His father, the late Sixto Brillantes Sr, was himself a Comelec commissioner who once wanted to chair the poll body. (READ: Brillantes: Comelec chair in his father's seat

Making history

In a separate text message on Friday, Jimenez confirmed that if Abas passes the CA, he will become the first Comelec commissioner to serve as chairman.

If confirmed, he will get to oversee the 2019 elections but not the scheduled 2022 presidential elections. He will also be in office for 4 years and 3 months, serving the unexpired portion of the term of resigned chairman Andres Bautista.

Abas will also become the first Comelec chair from Mindanao, the first Muslim, and, at the age of 38, the youngest elections chief in Philippine history. (READ: Sheriff Abas to break many firsts as Comelec chair)

At the same time, Abas' appointment means Duterte will get to appoint majority of Comelec members by early next year.

Read the relevant portion of the Funa vs Villar ruling below:

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:

1. The appointment of members of any of the 3 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 7 years; an appointment for a lesser period is void and unconstitutional.

The appointing authority cannot validly shorten the full term of 7 years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution.

2. Appointments to vacancies resulting from certain causes (death, resignation, disability, or impeachment) shall only be for the unexpired portion of the term of the predecessor, but such appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D).

3. Members of the Commission, e.g. COA, Comelec, or CSC, who were appointed for a full term of 7 years and who served the entire period, are barred from reappointment to any position in the Commission. Corollarily, the first appointees in the Commission under the Constitution are also covered by the prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less than 7 years is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service as commissioner and the unexpired period of the term of the predecessor will not exceed 7 years and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability, or removal by impeachment. The Court clarifies that reappointment found in Sec. 1(2), Art. IX(D) means a movement to one and the same office (Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment involving a movement to a different position or office (Commissioner to Chairman) would constitute a new appointment and, hence, not, in the strict legal sense, a reappointment barred under the Constitution.

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

– Rappler.com