Power of Appointment | Powers of the President | EXECUTIVE DEPARTMENT

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:

1. Appointments Requiring Confirmation by the Commission on Appointments (CA)
2. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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."

Disciplinary Power (Suspension and Removal) | 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
f. Disciplinary Power (Suspension and Removal)

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I. Constitutional and Statutory Basis

The President of the Philippines exercises disciplinary power over certain public officials based on constitutional and statutory authority. This power includes the authority to suspend or remove officials from their posts under specified conditions. While the Constitution grants certain powers to the President, this disciplinary power is largely governed by laws such as the Administrative Code of 1987 and judicial interpretations from the Supreme Court.

• Section 16, Article VII of the 1987 Constitution grants the President the power to appoint officials in the government. Inherent to this power is the authority to discipline, suspend, or remove certain appointed officials.
• Section 17, Article VII of the 1987 Constitution also underscores that the President shall ensure that all laws are faithfully executed. This gives the President oversight over government officers and employees, particularly in ensuring accountability in service.

II. Scope of the Disciplinary Power

The President’s disciplinary authority includes the following key components:

1. Power to Suspend

• Preventive Suspension: The President may impose preventive suspension on any appointed official while an investigation is ongoing. This is not a form of punishment but is preventive in nature, to ensure that the investigation is conducted impartially and that the official being investigated does not exert undue influence.
• Grounds for Suspension: Preventive suspension is usually imposed when:
  • The charges against the official involve dishonesty, oppression, misconduct, or gross neglect in the performance of duties.
  • The respondent’s continued stay in office may prejudice the investigation or influence witnesses.
  • The law or regulations provide for such suspension.

2. Power to Remove

• Grounds for Removal: The President may remove officials for cause, such as dishonesty, misconduct, neglect of duty, inefficiency, incompetence, or any other ground specified by law, particularly the Revised Administrative Code of 1987 and jurisprudence.
• Due Process: The removal of officials must adhere to the principle of due process. An official must be informed of the charges against them, given a reasonable opportunity to answer, and heard by an impartial body or authority before a decision is made.

3. Officials Subject to the President's Disciplinary Power

• Appointive Officials: Generally, the President has disciplinary authority over officials whom he or she has appointed, particularly those falling under the executive department. The power to discipline includes suspension, removal, and administrative penalties.
• Local Government Officials: The power to discipline local government officials is governed by the Local Government Code of 1991 (Republic Act No. 7160). The President’s power to discipline elective local officials is typically exercised through the Department of the Interior and Local Government (DILG), except in cases involving the President's direct appointment or positions falling under the President’s jurisdiction.
• Presidential Appointees Under Constitutional Bodies: Officials in independent constitutional bodies such as the Civil Service Commission (CSC) or the Commission on Audit (COA) are not subject to the direct disciplinary authority of the President due to their independence, as provided by the Constitution. Their disciplinary process is governed by their respective agencies or the courts.

III. Jurisprudential Principles on Disciplinary Power

1. Disciplinary Power as Inherent to Executive Control

• The Supreme Court has consistently held that the disciplinary power over officials within the executive branch is an inherent function of the President’s executive authority. This power includes not only the authority to appoint but also to discipline, suspend, and remove officials as part of ensuring effective governance and accountability (e.g., Paredes v. Executive Secretary, G.R. No. 158875, June 16, 2004).

2. Limits of the President’s Disciplinary Authority

• Constitutional Bodies and Independent Offices: The Supreme Court has ruled that the President’s disciplinary authority does not extend to officials belonging to constitutional commissions or other independent offices created by the Constitution, as these are beyond the control of the President to ensure their autonomy (Bautista v. COA, G.R. No. 191938, August 3, 2010).
• Checks and Balances: The exercise of the disciplinary power is subject to the doctrine of checks and balances. This ensures that while the President has significant control over the executive branch, the judiciary and legislative branches may intervene to prevent abuse of this authority. Moreover, the principle of separation of powers mandates that the President cannot unilaterally discipline or remove officials under the legislative or judicial branches, except when prescribed by law (e.g., impeachment, as in Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001).

3. Principle of Due Process in Disciplinary Actions

• The President must observe procedural due process when exercising disciplinary powers. In the case of removal or suspension, the official must be given notice of the charges, a reasonable opportunity to defend themselves, and an impartial determination of their case (e.g., Ang Tibay v. Court of Industrial Relations, G.R. No. L-46496, February 27, 1940).

IV. Delegation of Disciplinary Power

1. Delegation to Department Heads and Administrative Agencies

• The President can delegate the power to discipline certain officials to department secretaries, heads of agencies, or disciplinary boards, especially in cases involving lower-ranked officials. This delegation is consistent with the Administrative Code of 1987 and allows for efficient management of administrative cases within the executive branch.
• Exceptions to Delegation: The power to discipline certain high-ranking officials, such as cabinet members or constitutional officers (subject to appointment by the President), remains exclusively with the President. Furthermore, the removal of such officials requires a finding of just cause and adherence to proper procedures.

2. Disciplinary Power of Local Executives

• Local executives, such as mayors and governors, also possess disciplinary authority over subordinate officials within their respective jurisdictions, pursuant to the Local Government Code. However, the President may exercise supervisory disciplinary authority through the DILG, particularly in cases involving gross misconduct or violations of national law by local government officials.

V. Disciplinary Power as a Check on Corruption and Incompetence

The President’s disciplinary power serves as a vital mechanism for maintaining integrity and efficiency in the public service. By exercising this authority, the President can:

• Enforce accountability among executive branch officials.
• Remove or suspend officials guilty of misconduct, abuse of power, or neglect of duties.
• Uphold public trust in government institutions by ensuring that erring officials are held accountable.

VI. Conclusion

The disciplinary power of the President to suspend or remove officials is a fundamental component of executive authority. It ensures that public officers remain accountable to the people and that the executive branch operates with integrity and efficiency. This power, while broad, is subject to the principles of due process, separation of powers, and statutory limitations designed to prevent abuses and protect the rights of public officials. Jurisprudence further refines the scope of the President’s power, reinforcing its role as a tool for governance and accountability in the public sector.

Ad-Interim Appointments | Power of Appointment | Powers of the President | EXECUTIVE DEPARTMENT

Ad-Interim Appointments under the Power of Appointment of the President

1. Constitutional Basis and Nature of Ad-Interim Appointments

The power of appointment is an essential executive power granted to the President of the Philippines under Section 16, Article VII of the 1987 Philippine Constitution. Specifically, the provision outlines the procedures for appointments requiring the consent of the Commission on Appointments (CA). One form of presidential appointment is the ad-interim appointment, which can be defined as a temporary appointment made during a congressional recess.

An ad-interim appointment is made by the President when Congress is not in session and is subject to confirmation by the Commission on Appointments upon its resumption. This power is crucial for ensuring the continuity of government functions, particularly in filling vacancies in key positions that might hamper governance if left unfilled.

2. Distinction between Ad-Interim and Regular Appointments

• Ad-Interim Appointment:

  • Made by the President while Congress is in recess.
  • Takes effect immediately and allows the appointee to assume office and discharge their duties pending the confirmation by the CA.
  • Valid until the CA disapproves or until Congress adjourns again without final action on the appointment.
  • Can be reappointed if bypassed or disapproved, as long as constitutional provisions are observed.

• Regular Appointment:

  • Made when Congress is in session.
  • Requires prior submission to the CA for approval before the appointee can take office.
  • The appointee cannot perform the functions of the office until confirmation.

3. Mechanics and Operation of Ad-Interim Appointments

• Timing and Necessity: Ad-interim appointments are necessary to avoid a vacuum in critical government positions, especially in constitutional commissions, the judiciary, and other agencies requiring uninterrupted functions.
• Effectivity: The appointee immediately assumes the position once appointed, exercising the full powers of the office. However, the appointment remains subject to CA confirmation.
• Confirmation Process: Once Congress reconvenes, the appointment is submitted to the CA for confirmation. If confirmed, the appointment becomes permanent.
• Non-Confirmation: If the CA disapproves or bypasses the appointment, the appointee’s term ends. Despite non-confirmation, the President may reappoint the same individual multiple times, provided the CA has not explicitly disapproved the individual’s appointment.

4. Constitutional and Jurisprudential Framework

Several key jurisprudential rulings define the parameters of ad-interim appointments:

• Matibag v. Benipayo (G.R. No. 149036, April 2, 2002): The Supreme Court held that ad-interim appointments are temporary but effective immediately, subject to confirmation by the CA. The Court ruled that ad-interim appointments are distinct from regular appointments. It also affirmed the President’s power to renew or issue new ad-interim appointments when bypassed by the CA.

• Paredes v. Executive Secretary (G.R. No. 131325, July 19, 1999): This case involved the revocation of ad-interim appointments. The Supreme Court reiterated the principle that an ad-interim appointment, being effective immediately, can be disapproved by the CA. However, disapproval should be explicit and not merely implied by bypass. An ad-interim appointee cannot be removed simply because they have not yet been confirmed.

• Sarmiento v. Mison (G.R. No. 79974, December 17, 1987): The case involved appointments to the Bureau of Customs, and the Court clarified that positions requiring confirmation by the CA include heads of bureaus, offices, and other government entities. However, ad-interim appointments made by the President during a recess are valid until rejected by the CA.

5. Limitations on Ad-Interim Appointments

• Prohibition During Election Period: Under Section 15, Article VII of the Constitution, the President is prohibited from making appointments two months immediately before the next presidential elections and up to the end of the President's term. This applies to regular appointments as well as ad-interim appointments, with exceptions for temporary appointments to executive positions when continued vacancies may prejudice public service or endanger public safety.

• Resignation and Vacancy: An ad-interim appointee holds the position only until such time as their appointment is acted upon by the CA. If bypassed, disapproved, or upon the appointee’s resignation, the position becomes vacant, and the President may choose to make another appointment.

6. Significance and Implications of Ad-Interim Appointments

The system of ad-interim appointments plays a critical role in the stability and continuity of government operations by preventing the paralysis of critical government offices during congressional recesses. It allows the President to respond swiftly to emerging governance needs without waiting for the legislative branch to reconvene.

Nevertheless, this power must be exercised within the bounds of the Constitution to avoid abuse. The requirement for CA confirmation ensures a system of checks and balances, providing a mechanism to assess the qualifications and fitness of individuals for key positions in government.

In sum, ad-interim appointments are a constitutionally enshrined power of the President that ensures the uninterrupted functioning of the government while maintaining accountability through the confirmation process by the Commission on Appointments.

Scope of Midnight Appointments | Power of Appointment | Powers of the President | EXECUTIVE DEPARTMENT

Midnight Appointments: Scope and Limitations

I. Constitutional Basis and Legal Framework

1. Section 15, Article VII of the 1987 Constitution explicitly addresses the prohibition against midnight appointments by the President. The relevant provision states:

   "Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."

2. Purpose of the Provision: The rationale behind the prohibition on midnight appointments is to prevent the outgoing President from appointing individuals to key government positions for personal or political gain. It aims to protect the integrity of the electoral process, ensure smooth transition of power, and prevent "packing" the government with loyalists before leaving office.

II. Definitions and Nature of Midnight Appointments

1. What Constitutes a Midnight Appointment? Midnight appointments are those made by the President within the prohibited period (two months before the next presidential elections until the end of the President's term). The appointments falling within this period, with limited exceptions, are generally deemed invalid.

2. Scope of the Prohibition: The prohibition encompasses all appointments made within the specified period, except for:

   • Temporary appointments to executive positions.
   • Promotions and new appointments to the judiciary (which are subjected to separate restrictions and the Judicial and Bar Council's recommendations).
   • Appointments to vacancies in offices related to national security or public service emergencies, wherein leaving the position vacant could endanger public safety.

3. Exceptions: The Constitution permits the President to make temporary appointments to executive positions within the prohibited period if:

   • The continued vacancy in the position would prejudice public service, or
   • There is a danger to public safety. These temporary appointments are necessary to avoid disruption of essential government functions during the electoral period and the transition to a new administration.

III. Key Supreme Court Decisions and Jurisprudence

Several landmark cases have clarified and defined the scope and extent of the prohibition on midnight appointments:

1. Aytona v. Castillo (1962)

   • This case is foundational in addressing the concept of midnight appointments. It involved the appointment of officials by outgoing President Carlos P. Garcia in the last few days of his presidency. The Supreme Court invalidated these appointments, stressing that the outgoing President is merely a “caretaker” of the government during the transitional period. The Court ruled that appointments made during the twilight of a presidency are highly suspicious and must be discouraged.

2. De Castro v. Judicial and Bar Council (2010)

   • This case addressed whether the President could appoint the Chief Justice within the prohibited period. The Supreme Court ruled that the prohibition on midnight appointments does not extend to judicial appointments, specifically appointments to the Supreme Court. This ruling clarified that the Judiciary has a unique process for appointments governed by the Judicial and Bar Council, and the need for continuity in judicial functions justified the exception.

3. In Re: Valenzuela (1998)

   • This case involved the appointment of a Regional Trial Court (RTC) judge within the prohibited period. The Supreme Court invalidated the appointment, emphasizing that while judicial appointments are an exception to the prohibition, appointments to lower courts (below the Supreme Court) made during the midnight period are still subject to scrutiny and potential invalidation if found to violate the spirit of the prohibition.

4. Agan v. PIATCO (2003)

   • In this case, the Supreme Court emphasized that even though an appointment was made before the prohibited period, it could still be classified as a midnight appointment if it was rushed or made under suspicious circumstances. The timing and manner in which an appointment is made, even if technically outside the prohibited period, can affect its validity.

IV. Types of Appointments Covered by the Prohibition

1. Executive Department Appointments:

   • The prohibition primarily applies to appointments to positions in the Executive branch. These include Cabinet members, undersecretaries, and other high-level executive positions.

2. Military and Police Appointments:

   • Appointments within the military and police forces are also covered, particularly in cases where high-ranking officials are promoted or appointed within the prohibited period.

3. Judicial Appointments:

   • As clarified by De Castro v. JBC, appointments to the Supreme Court are exempted from the prohibition, though appointments to lower courts can be scrutinized if they are perceived to be midnight appointments.

4. Appointments to Independent Constitutional Bodies:

   • Positions in bodies such as the Commission on Elections (COMELEC), Commission on Audit (COA), and the Civil Service Commission (CSC) are also covered by the prohibition. This is to avoid the outgoing President unduly influencing these independent agencies by filling them with loyalists before the end of their term.

V. The Nature of Temporary Appointments

1. When Allowed:

   • Temporary appointments are allowed if there is a compelling reason for them, such as ensuring the continuity of essential government functions. These appointments, however, must be of a temporary nature, meaning the appointees can be replaced once a permanent appointment is made by the incoming President.

2. Limitations on Temporary Appointments:

   • While temporary appointments are permitted, they are subject to strict conditions. These appointments must be justified by the need to protect public service or public safety, and they are not meant to permanently fill vacancies.

VI. Legal Consequences of Midnight Appointments

1. Invalidity of Appointments:

   • Midnight appointments made in violation of Section 15, Article VII of the Constitution are null and void. Persons appointed to such positions have no legal right to occupy them, and the incoming President has the authority to revoke such appointments without the need for Senate concurrence.

2. Administrative and Criminal Liabilities:

   • Public officials who knowingly accept midnight appointments or aid in their implementation may be held liable for violating the Constitution and relevant laws. This could lead to administrative sanctions or criminal prosecution.

3. Removal of Appointees:

   • Midnight appointees can be immediately removed by the incoming President, as their appointment is deemed illegal from the start.

VII. Conclusion

The constitutional prohibition on midnight appointments is a vital safeguard to ensure the fairness and integrity of the political transition process. It prevents the outgoing President from unduly influencing the incoming administration by installing loyalists in key positions. This provision has been consistently upheld by the Supreme Court, particularly in cases like Aytona v. Castillo and De Castro v. JBC, which have shaped the jurisprudence on this matter. While there are limited exceptions to the rule, such as temporary appointments in the interest of public safety or judicial appointments to the Supreme Court, the general principle remains: appointments made during the twilight of a President’s term are highly suspicious and, in most cases, prohibited.

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.

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.

Process of Confirmation by the Commission on Appointments | Power of Appointment | Powers of the President | EXECUTIVE DEPARTMENT

Power of Appointment of the President and the Process of Confirmation by the Commission on Appointments

I. Constitutional Framework on 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 provision grants the President the authority to appoint individuals to public office, either with or without the need for confirmation by the Commission on Appointments (CA).

The relevant portion of Article VII, Section 16 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.”

This power is broad and applies to various positions in government, but the Constitution provides specific rules for appointments that require the confirmation of the CA, as well as those that do not.

II. Classifications of Appointments

1. Appointments Requiring Confirmation by the Commission on Appointments (CA): Appointments to certain key government positions require the consent of the CA before they can take effect. These positions include:

   • Heads of executive departments (Cabinet Secretaries)
   • Ambassadors, other public ministers, and consuls
   • Officers of the Armed Forces from the rank of colonel or naval captain
   • Other officers as may be provided by law or vested in the President by the Constitution

   The rationale for requiring confirmation from the CA is to provide a system of checks and balances, ensuring that these key appointments are subject to legislative oversight. The CA is composed of members of Congress and acts as a mechanism to prevent abuse in appointments.

2. Appointments Not Requiring CA Confirmation: The President is also empowered to appoint a wide range of officials without the need for CA confirmation. These include:

   • Members of the Supreme Court and lower courts (judicial appointments are subject to the Judicial and Bar Council’s nomination process, but not CA confirmation)
   • Members of Constitutional Commissions such as the Commission on Elections (COMELEC), Civil Service Commission (CSC), and Commission on Audit (COA), although they require confirmation from the CA
   • The Ombudsman and his or her Deputies (subject to CA confirmation)
   • Heads of government agencies or offices other than those listed for CA confirmation
   • Temporary appointments made during a recess of Congress (recess appointments), which are effective only until the next adjournment of Congress

III. The Appointment Process

1. Nomination and Appointment: The process begins with the nomination by the President. The nominee's qualifications, integrity, and capacity to serve are often evaluated based on their record, background, and the requirements of the position.

2. Submission to the Commission on Appointments: For positions that require confirmation, the nomination is submitted to the CA. The CA is a bicameral body composed of members from both the Senate and the House of Representatives. It is chaired by the Senate President and functions as a collective body distinct from the legislative function of Congress.

3. Hearing and Deliberation: The CA, through its relevant committees, conducts public hearings where the nominee is invited to answer questions regarding his or her qualifications, background, and plans for the position. The process is rigorous, and members of the CA may raise objections, seek clarification, or support the nomination based on the responses of the nominee and the overall assessment of their suitability for the role.

4. Voting: After the hearings, the CA proceeds to vote on the nomination. A majority vote of all members of the CA is required for confirmation. If the nominee secures the majority vote, the CA issues a formal confirmation of the appointment. In the case of non-confirmation, the nomination is rejected, and the President must submit a new nominee for the same position or make an interim appointment during a recess of Congress.

5. Effect of Non-Confirmation: If the CA disapproves or rejects the appointment, the nominee is barred from assuming office. However, the President may appoint a new nominee to the same position or, in certain cases, may issue a temporary or ad interim appointment during a recess of Congress (discussed further below).

IV. Ad Interim Appointments

1. Nature of Ad Interim Appointments: An ad interim appointment is a temporary appointment made by the President during a recess of Congress. Such appointments take effect immediately and enable the appointee to assume office, even before the CA has confirmed the appointment. However, the appointment is subject to CA confirmation when Congress reconvenes.

2. Effectivity of Ad Interim Appointments: Ad interim appointments remain effective unless the CA expressly disapproves the appointment upon reconvening. If the CA rejects the ad interim appointment, the appointee must vacate the position. If no action is taken by the CA, the ad interim appointment remains valid until the end of the next session of Congress.

3. Limitations on Ad Interim Appointments: While ad interim appointments are a means for the President to fill critical vacancies during Congress’ recess, they are meant to be temporary. They are often scrutinized for potential misuse, particularly in attempts to bypass the CA's oversight role. As such, a non-confirmed appointee cannot be reappointed ad interim after the rejection of the nomination by the CA.

V. Checks and Balances: Role of the Commission on Appointments

The Commission on Appointments plays a pivotal role in ensuring the integrity of key presidential appointments. It serves as a check on executive power, preventing abuse in the selection of high-ranking government officials. The CA’s confirmation power ensures that only qualified and capable individuals are appointed to positions of critical importance in the government.

1. Independent Function of the CA: The CA operates independently of both the legislative and executive branches in its function of reviewing and confirming appointments. Although composed of members of Congress, it acts as a separate body with its own rules and procedures.

2. Transparency and Public Accountability: The public nature of CA hearings allows transparency in the confirmation process. Nominees are questioned not only on their qualifications but also on any past controversies or issues of integrity that may arise. This open scrutiny helps ensure public accountability of high-ranking officials.

3. Limitations on the CA’s Power: The CA’s confirmation power is limited to specific positions expressly provided for by the Constitution and by law. It does not extend to appointments that fall outside its jurisdiction, such as judicial appointments or appointments to certain government agencies. This is in line with the principle of separation of powers and allows for distinct processes depending on the nature of the appointment.

VI. Judicial Review of Appointments

In some cases, disputes regarding appointments or the confirmation process may be subject to judicial review. The Supreme Court of the Philippines has, in several cases, ruled on the validity of appointments, especially concerning issues of constitutional interpretation, qualifications, and the role of the CA. The judiciary may intervene if there is a grave abuse of discretion in the appointment or confirmation process.

VII. Key Jurisprudence

1. Flores v. Drilon (1993) – The Supreme Court clarified that the CA's role in confirming appointments is limited only to positions specifically enumerated in the Constitution and by law. Appointments to positions outside this list do not require CA confirmation.

2. Matibag v. Benipayo (2002) – The Court upheld the validity of ad interim appointments and clarified that an appointee who is rejected by the CA cannot be reappointed in the same capacity during the same legislative session.

3. Pimentel v. Executive Secretary (2002) – This case reaffirmed that the CA must confirm key appointments, such as those for constitutional commissions, to prevent the concentration of appointment powers in the executive branch.

VIII. Conclusion

The power of appointment is one of the most significant powers vested in the President of the Philippines. However, the Constitution ensures that this power is not exercised unchecked by requiring certain appointments to undergo the process of confirmation by the Commission on Appointments. This process balances executive authority with legislative oversight, maintaining a system of checks and balances essential to the democratic governance of the country. The CA's confirmation role safeguards the integrity of appointments, ensuring that only qualified and reputable individuals serve in key government positions.