Bypassed Appointments and their Effects | Power of Appointment | Powers of the President | EXECUTIVE DEPARTMENT

Political Law and Public International Law

X. Executive Department

C. Powers of the President

2. Power of Appointment

b. Bypassed Appointments and their Effects

Overview of the Power of Appointment

The power of appointment is vested in the President of the Philippines under Article VII, Section 16 of the 1987 Constitution. This authority allows the President to select individuals for various public offices, including those in the judiciary, executive departments, bureaus, and agencies. This is a crucial aspect of the executive power as it ensures the functioning of the government by filling key positions.

Appointments by the President may be classified into:

• Regular Appointments (with the consent of the Commission on Appointments or without their involvement, depending on the position),
• Ad Interim Appointments (temporary appointments made during the recess of Congress), and
• Bypassed Appointments, where the nominee fails to secure confirmation from the Commission on Appointments.

Bypassed Appointments: Definition and Consequences

A bypassed appointment occurs when a nomination or ad interim appointment made by the President is not acted upon or confirmed by the Commission on Appointments (CA) within a certain period. This can happen for a variety of reasons, such as the CA failing to reach a consensus, lack of quorum, or deliberate inaction.

Under the 1987 Constitution, the effects and legal consequences of bypassed appointments depend on the nature of the appointment:

1. Ad Interim Appointments:

   • These are temporary appointments made by the President during the recess of Congress, subject to confirmation by the CA when it reconvenes.
   • Validity: An ad interim appointment is effective immediately upon appointment and the appointee can begin performing their duties. However, the appointment is subject to confirmation by the CA when Congress resumes session.
   • Bypass Scenario: If the CA fails to confirm the ad interim appointment before the adjournment of Congress, the appointment is considered bypassed. This means that the appointee can no longer hold office, and the position becomes vacant upon the adjournment of Congress.
   • Reappointment: The President may reappoint the bypassed appointee when Congress is again in recess. This reappointment is not prohibited by law and may be repeated, although repeated bypassing may indicate political difficulties for the appointee.

2. Nomination (Non-Ad Interim Appointments):

   • Appointments requiring the CA's confirmation must first be confirmed before the appointee can assume office. Unlike ad interim appointments, these individuals cannot perform their duties without confirmation.
   • Bypass Scenario: If the CA fails to confirm the nomination, it is bypassed. A bypassed nomination does not have any legal effect as the individual has not yet assumed office, but the President may re-nominate the individual in the next session.

Legal Framework for Bypassed Appointments

1. 1987 Constitution:

   • Article VII, Section 16 outlines the general rule for appointments, stating that the President shall nominate individuals for positions that require CA confirmation.
   • The President can issue ad interim appointments when Congress is not in session. These appointments are valid until the CA either confirms or bypasses them.

2. Jurisdiction of the Commission on Appointments:

   • The Commission on Appointments has the constitutional duty to confirm appointments made by the President for certain high-ranking officials, including department secretaries, ambassadors, and officers of the armed forces from the rank of colonel or naval captain.
   • The CA’s refusal to act, deliberate inaction, or failure to confirm an appointment before adjournment constitutes a bypass, triggering the end of the ad interim appointment’s validity.

3. Jurisprudence:

   • The Supreme Court has clarified the effects of bypassed appointments in several cases:
     • Pimentel v. Ermita (G.R. No. 164978, October 13, 2005): The Court held that ad interim appointments are effective immediately upon issuance, but are valid only until Congress adjourns without confirmation. A bypass does not constitute a rejection but merely a non-action by the CA.
     • Matibag v. Benipayo (G.R. No. 149036, April 2, 2002): The Court upheld the constitutionality of repeated reappointments of bypassed appointees, as there is no express prohibition in the Constitution against such practice. The Court emphasized that the President has the discretion to reappoint bypassed appointees, provided that each ad interim appointment complies with the constitutional process.

4. Effects of Bypassing:

   • Ad Interim Appointment: When bypassed, the appointee must vacate the office immediately upon the adjournment of Congress. The President may reappoint the individual during the next recess, but continuous bypassing may reflect negatively on the appointee’s suitability.
   • Nomination: When bypassed, the nominee simply does not assume office. The President may re-nominate the person in the next session or choose a different nominee.

5. Reappointment of Bypassed Appointees:

   • The Constitution allows the President to reappoint a bypassed appointee through a fresh ad interim appointment during another recess. There is no limit to how many times a President may reappoint an individual who has been bypassed, but political or practical considerations may discourage repeated reappointments, especially if the CA is likely to bypass or reject the nominee again.
   • Practical Effects: While reappointment is legally allowed, repeated bypassing signals a lack of consensus or opposition in the CA, which may force the President to reconsider the nomination. The President may also explore other ways to appoint or confirm loyal or highly qualified individuals to important posts.

Conclusion

In summary, bypassed appointments have specific effects depending on whether the appointment is ad interim or nominative. Ad interim appointments allow immediate assumption of office but cease upon the adjournment of Congress without confirmation by the CA. Bypassed nominees simply cannot take office. The President retains the discretion to reappoint bypassed appointees, and such reappointments are allowed under the Constitution. However, repeated bypasses may highlight difficulties in gaining the CA's approval, which can have political consequences for both the appointee and the President.