Cloudy COA: Former commissioners of the country's supreme audit institution urge the President to exercise his power to appoint an ad-interim chairman and a commissioner immediately as means to address two vacancies this week and to enable COA perform its role in promoting accountable governance. Photo courtesy of World News

Unless President P-Noy steps in and exercises his presidential power of appointment, the clouds gathering over the Commission on Audit (COA) may break into a storm which could prevent it from performing its constitutional duty –temporarily at least.

If this happens, the three-man collegial body of the COA known as the Commission Proper (CP) which is the highest audit appeals and policy-making organ of the Philippines’ supreme audit institution will grind to a halt. It is a real possibility given that two out of the three Commissioner seats fall vacant this week.

The ending of the terms of office of two members of the Commission Proper, namely the incumbent COA Chairman, Hon. Reynaldo A. Villar, and incumbent COA Commissioner Hon. Evelyn R. San Buenaventura. Both terms end on the same date, February 2, 2011.

The consequent disqualification of both Villar and San Buenaventura from holding office beyond February 2, 2011 in view of the prohibition in Section 1 (2), Article IX-D of the 1987 Constitution which provides, in part, that:

“The Chairman and the Commissioners (of COA) shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment.”

(c) With only one member of the Commission Proper (CP) remaining in office as Commissioner by February 3, 2011, the CP can no longer decide cases on appeal, formulate policies, promulgate rules and regulations, and prescribe standards governing the discharge of the powers and functions of the Commission on Audit, in view of Section 1 (1), Article IX-D of the 1987 Constitution that mandates that “There shall be a Commission on Audit composed of a Chairman and two Commissioners”, and of Section 6 of the Government Auditing Code of the Philippines that requires that “The Commission Proper shall be composed of the Chairman and two Commissioners”.

Background

Incumbent COA chairman Villar was first appointed as Commissioner of COA by then President Gloria M. Arroyo on February 7, 2004 “for a term expiring on 02 February 2011”, and confirmed by the Commission on Appointments (CA) on March 16, 2005. On April 15, 2008 Villar was again appointed by then President Gloria M. Arroyo, this time as Chairman “for a term expiring on 02 February 2011”, and confirmed by the CA on June 11, 2008.

On January 5, 2010, San Buenaventura was appointed as Commissioner vice Reynaldo Villar, also by then President Gloria M. Arroyo “for a term expiring on 02 February 2011”.

Thus, if by 3 February 2011 the positions of chairman and one commissioner in the COA shall not have been filled by new appointments, then the only remaining position in the Commission Proper shall be that occupied by Hon. Juanito G. Espino, Jr. as Commissioner per his appointment dated May 05, 2006, “for a term expiring on 02 February 2013”.

To complicate further the situation is the move by some sectors to extend the term of incumbent Chairman Villar until February 2015, invoking the Constitutional provision of Section 1 (2), Article IX-D of the 1987 Constitution which provides that “The Chairman and the Commissioners (of COA) shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment.” It is argued that since Villar was appointed as COA Chairman only April 15, 2008, his seven year term of office will end only on February 02, 2015.

On the other hand the Citizen’s Oversight on Accountability (COA), Inc., a non-profit foundation composed of retired COA officials namely former Chairmen Eufemio C. Domingo and Celso D. Gangan; former Commissioners Sofronio B. Ursal, Hermogenes Pobre, and Alberto Cruz; and former Director Tito Nabua, recently passed a resolution expressing the opinion that “the view that Hon. R. A. Villar may continue in office as Chairman beyond February 02, 1011 is misplaced and without any legal basis, in view of the following:

1.“His term of office as Chairman is clearly indicated in his Appointment as expiring on 02 February 2011 since his earlier appointment as Commissioner was extended on 07 February 2004 and therefore the Constitutional term limitation of seven years in Section 1 (2), Article IX-D falls in both cases on 02 February 2011.

2.“In the case of Gaminde vs. CoA (G.R. No. 140335, Dec. 13, 2000) the appointment paper of Gaminde as Commissioner of the Civil Service Commission was ‘for a term expiring February 02, 1999’, which she accepted and assumed office. In that case the Supreme Court said that ‘She (Gaminde) is bound by the term of the appointment she accepted, expiring February 02, 1999’. Similarly, in the instant case of Hon. R. A. Villar, he too must be bound by the term of his appointment which he accepted and assumed office, the terminal date of which is specified as 02 February 2011.

3.“In the Record of the Constitutional Commission’s proceedings of the 1987 Constitution the particular situation at hand is the subject of the following debate:

“’MS. AQUINO. I would propose an amendment (to) the sentence which begins with ‘In no case,’ insert THE APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may approximate the situation wherein a commissioner is first appointed as an ordinary commissioner and later on appointed as chairman. I am willing to withdraw that appointment if there is an implicit intention to prohibit a term that in the aggregate will exceed more than seven years.

“’MR. MONSOD. If the Gentleman (sic) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore, as a whole there is no way that somebody can serve for more than seven years.

“’MS. AQUINO. But I was thinking of a situation wherein a commissioner is upgraded to a position of chairman. But if this provision is intended to cover that kind of situation, then I am willing to withdraw my amendment.

“’MR. MONSOD. That is covered.’”

The recent COA, Inc. resolution concludes with an urgent “appeal to His Excellency Benigno S. Aquino III, President of the Republic of the Philippines, to fill up the vacancies of Chairman and one Commissioner in the Commission on Audit on before February 2, 2011, or as soon as possible, so as to prevent the possible functional paralysis of the Commission Proper which is a vital organ of the Commission on Audit.”

The importance of COA

The COA is a monolithic organization of 13,000 personnel, with auditing staffs farmed out nationwide to audit the public fund accounts of all departments, agencies and offices in the Executive, Judicial and Legislative branches of government. Even the expenditures of the Office of the President, the pork barrel funds of the Congressmen, and the accounts of the Supreme Court, are not spared from the audit scrutiny of the COA auditors.

Unlike most government agencies which are created by law, COA owes its existence directly from the Constitution itself. As a constitutional body the COA is not under the control and supervision of any of the three departments of government. This is to ensure its audit independence, for its functions include the power to settle and audit all accounts pertaining to the receipts, expenditures and uses of public funds and property in the custody of all agencies and offices in the Executive, the Judicial and the Legislative branches. Its awesome audit authority includes the power to decide money claims for or against the government, and to disallow in audit transactions which are irregular, unnecessary, excessive, extravagant and unconscionable. Its decisions on these matters, which are appealable only to the Supreme Court, may result in the administrative, civil or penal liabilities of the public officers concerned.

Call for presidential action

If the Supreme Court has thwarted the administration’s program particularly the Truth Commission, and the Office of the Ombudsman frustrated a number of its filed anti-graft cases, the COA has the potential to derail even the more important programs of the administration pertaining to transparency, accountable governance, and anti-corruption campaigns throughout the entire Philippine bureaucracy.

President P-Noy is presently offered the rare opportunity to select and appoint an ad-interim chairman and one commissioner of his own choice which shall take effect immediately, provided made before the current Congress convenes in session by the last half of January, 2011. Missing on that the President can only nominate and, with the consent of the Commission on Appointments, appoint said officials during the sessions of Congress. It shall only be by the next recess of Congress that the President can again extend ad-interim appointments which shall immediately take effect until disapproved by the Commission on Appointments, or until the next adjournment of Congress.

The President’s Social Contract with the Filipino people of “kung walang corrupt, walang mahirap”, (if there is no corrupt, there would be no poor) can only succeed with the strong support of the COA, the institution of government that has the exclusive constitutional power, authority and duty to examine, audit and settle all accounts pertaining to the revenues and receipts of, and expenditures or uses of funds and property of, all agencies of the government. Philippine Public Transparency Reporting Project

(The author is a former Commissioner with the Commission on Audit.)