Appointments by an Acting President | Power of Appointment | Powers of the President | EXECUTIVE DEPARTMENT

Appointments by an Acting President: Legal Framework and Jurisprudence

I. Constitutional Provisions

Under the 1987 Philippine Constitution, the power of appointment is an inherent function of the President of the Republic. However, in certain instances, the Constitution allows for the succession of an Acting President—a temporary holder of executive powers—who may also exercise the power of appointment. It is crucial to examine the scope and limitations of such authority, as laid down in the Constitution and relevant jurisprudence.

1. Article VII, Section 7 of the Constitution outlines the line of succession and provides for situations where the Vice President or Senate President (or the Speaker of the House of Representatives) may serve as Acting President in cases of death, disability, resignation, or removal of the President, until a new President is duly elected and qualified.

2. Article VII, Section 13 discusses prohibitions on the President and Acting President regarding certain appointments, specifically:

   • The spouse and relatives by consanguinity or affinity within the fourth civil degree cannot be appointed to any position in the government during the Acting President’s tenure.

3. Article VII, Section 16 establishes the general power of the President to make appointments with the consent of the Commission on Appointments (CA) for certain positions, as well as appointments during the Congress recess (ad interim appointments). An Acting President would typically have the same powers of appointment, but within the scope of what is constitutionally permissible.

II. Jurisprudence on the Power of Appointment by an Acting President

1. Doctrine of Necessity in Succession The Supreme Court has established that an Acting President must exercise executive functions, including the power of appointment, to maintain the continuity of government. However, the Acting President's powers may be subject to certain limitations, both constitutional and statutory.

2. Case: In Re: Appointments by Acting President (Example Hypothetical Case) A hypothetical case could discuss the extent of the authority of an Acting President to make crucial appointments that may affect the long-term structure of the government, particularly with regard to appointments that go beyond the tenure of the Acting President. The Court, in such scenarios, would likely emphasize that while the Acting President has full powers, the temporary nature of the position demands caution in making appointments, especially those that would extend beyond the temporary administration.

3. Ad Interim Appointments by an Acting President Under the constitutional framework, ad interim appointments—those made during the recess of Congress—remain valid until disapproved by the Commission on Appointments or until the next adjournment of Congress. The Acting President retains the power to make such appointments to ensure the uninterrupted functioning of the government.

4. Limitations Imposed on Acting Presidents Appointments made by an Acting President may be subject to scrutiny under the following conditions:

   • Tenure of Acting President: Since the authority of an Acting President is temporary, appointments made during this period should not be viewed as permanent, especially if they affect key positions in the executive branch.
   • Political Neutrality: Appointments made by an Acting President should avoid any political entanglements or actions that could be seen as consolidating political power in favor of the Acting President's future political ambitions or affiliations.
   • Interim Nature of Appointments: The Supreme Court may interpret the appointments made by an Acting President as generally limited to interim or temporary posts, given the provisional nature of the office.

III. Relevant Doctrines and Legal Principles

1. Doctrine of Necessity: As the Acting President exercises the full powers of the President, the Doctrine of Necessity comes into play. The Acting President must have the ability to appoint officials to maintain the functioning of government services and operations, especially in urgent situations. However, this doctrine must be balanced with constitutional restrictions on appointments.

2. Principle of Temporary Succession: The power vested in an Acting President is inherently temporary, and appointments made under this regime may also be seen as provisional or limited in nature. The Acting President is expected to avoid making "midnight appointments" or those that are controversial or politicized, particularly if they are likely to affect the succeeding administration.

3. Confirmation and Accountability: Like the President, the Acting President’s appointments to key positions (e.g., department heads, ambassadors, members of constitutional commissions) require the confirmation of the Commission on Appointments. This ensures a system of checks and balances even during the temporary assumption of power by the Acting President.

IV. Statutory and Regulatory Considerations

In addition to the constitutional framework, statutory laws and executive issuances also provide guidelines for the exercise of appointment powers by an Acting President:

1. Administrative Code of 1987:

   • Provides that the President, and by extension the Acting President, may issue appointments to fill vacancies in the executive branch. However, appointments to certain high-ranking positions require confirmation by the Commission on Appointments.

2. Executive Orders and Memoranda:

   • Specific executive issuances may clarify the authority of an Acting President in making appointments during specific situations, such as when Congress is in recess or during periods of national emergency.

V. Analysis and Conclusion

The power of appointment by an Acting President is a significant executive function designed to ensure continuity and the smooth operation of government even in times of transition. However, this power is not without its limits. The constitutional framework and relevant jurisprudence emphasize the provisional nature of an Acting President’s tenure and, by extension, the caution that must be exercised in making appointments.

Key considerations include:

• Ensuring that appointments are necessary for the continued functioning of the government.
• Avoiding controversial or permanent appointments that could entrench political allies or alter the structure of key government institutions.
• Balancing the powers of the Acting President with the overarching principle of political neutrality and continuity of governance.

In conclusion, while an Acting President has the constitutional authority to make appointments, the exercise of this power is subject to certain legal, political, and ethical constraints that aim to preserve the integrity and continuity of governance during periods of presidential transition.