Power of Appointment of the President (Philippine Political Law and Public International Law)

The power of appointment is one of the key prerogatives vested in the President of the Philippines by the Constitution. It plays a crucial role in ensuring that the executive department functions effectively by enabling the President to select competent individuals to hold public offices. This power, however, is not absolute and is subject to constitutional and statutory limitations.

Constitutional Basis

The power of appointment of the President is primarily rooted in the 1987 Philippine Constitution, particularly in Article VII, Section 16, which states:

"The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of lower-rank officers in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards."

This provision reflects the dual nature of the President's power of appointment:

Appointments Requiring Confirmation by the Commission on Appointments (CA)
Appointments Not Requiring Confirmation (Direct Appointments)

1. Appointments Requiring Confirmation by the Commission on Appointments

The Constitution specifies certain appointments that require the concurrence or confirmation of the Commission on Appointments (CA). These include:

Heads of executive departments (Cabinet secretaries)
Ambassadors and other public ministers
Consuls
Officers of the Armed Forces from the rank of colonel or naval captain
Constitutional officers whose appointments are vested in the President, such as members of constitutional commissions (e.g., Civil Service Commission, Commission on Elections, Commission on Audit)

The Commission on Appointments is composed of members from both houses of Congress (Senate and House of Representatives) and serves as a check on the President's appointment power. The process involves the President submitting nominations to the CA, which may approve, reject, or bypass the nomination.

It is important to note that while the CA can confirm or reject an appointment, it cannot remove an appointee. Furthermore, appointments that require CA confirmation cannot be bypassed by making temporary or ad interim appointments when Congress is not in session. However, ad interim appointments may be made during recess and are effective immediately but subject to later confirmation.

2. Appointments Not Requiring Confirmation (Direct Appointments)

For certain positions, the President has the authority to make appointments without the need for confirmation by the Commission on Appointments. These include:

Members of the Supreme Court and lower courts
The Ombudsman and his deputies
Sectoral representatives in Congress (if applicable)
Members of constitutional bodies like the Human Rights Commission
Officers of the government whose appointments are not otherwise provided for by law

Under this category, the President exercises more direct discretion in filling vacancies, subject to the qualifications and eligibility requirements prescribed by law. For example, judicial appointments are made based on the recommendations of the Judicial and Bar Council (JBC), an independent body tasked with screening nominees for judicial positions.

Limitations on the President's Power of Appointment

Checks by the Commission on Appointments: As mentioned earlier, the CA serves as a check on the President's power of appointment for key positions.
Judicial and Bar Council: In the case of appointments to the judiciary, the Judicial and Bar Council limits the President's discretion by submitting a shortlist of nominees from which the President can choose.
Appointments Subject to Merit and Fitness: The Constitution mandates that appointments in the civil service should be based on merit and fitness. The Civil Service Commission ensures that appointments adhere to this principle, thereby constraining the President’s power to appoint unqualified individuals.
Ineligibility of Elective Officials: Under the Constitution (Article IX, Section 7), no elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. This provision prevents the President from appointing sitting elected officials to executive positions.
Prohibition of Midnight Appointments: Under Article VII, Section 15 of the Constitution, the President is prohibited from making appointments two months before the next presidential elections and up to the end of his or her term. Appointments made during this period are known as "midnight appointments" and are generally considered void. An exception to this rule applies to temporary appointments to executive positions when immediate action is needed.
Term Limits: Many key appointments, especially to constitutional commissions or the judiciary, are for fixed terms. The President cannot dismiss or remove these officials without cause before the expiration of their terms, limiting the influence of the appointing power.

Ad Interim Appointments

As provided by the Constitution, when Congress is not in session, the President may make ad interim appointments to positions that would otherwise require confirmation by the Commission on Appointments. These appointments take effect immediately, but they lapse if not confirmed by the CA once Congress resumes. Ad interim appointees enjoy all the powers of regular appointees but remain subject to CA confirmation.

In the event the CA rejects or bypasses an ad interim appointment, the President may not reappoint the same person to the same position.

Case Law on Appointments

The Supreme Court of the Philippines has rendered several important decisions regarding the President’s power of appointment, including:

De Castro v. Judicial and Bar Council (G.R. No. 191002, 2010): The Court ruled that the prohibition on midnight appointments does not apply to appointments to the Supreme Court. Thus, the President retains the power to appoint a Chief Justice even within the prohibited period if the vacancy is in the judiciary.
Rufino v. Endriga (G.R. No. 139554, 2003): The Court emphasized that appointments to the board of trustees of the Cultural Center of the Philippines do not require confirmation by the Commission on Appointments.
Matibag v. Benipayo (G.R. No. 149036, 2002): In this case, the Supreme Court ruled that ad interim appointments to constitutional commissions (in this case, the Commission on Elections) are valid but subject to CA confirmation. If not confirmed, the appointee is barred from reappointment to the same position.

Conclusion

The President’s power of appointment is one of the most significant tools for ensuring the functioning of the executive branch and for influencing the composition of various government offices. However, this power is tempered by constitutional checks and balances, primarily through the oversight of the Commission on Appointments, the Judicial and Bar Council, and other constitutional provisions such as the prohibition on midnight appointments.

The proper exercise of the power of appointment ensures that public offices are held by qualified and competent individuals, reinforcing the constitutional principle that "public office is a public trust."