4. Results
4.4 Analysis of tissue-specific roles of Cdk1 in vivo .1 Cdk1 expression in the Purkinje cells of the cerebral cortex
(1) Impoundment Power
- refusal of the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority or any type. (PHIILCONSA VS. ENRIQUEZ)
- 3 principal sources:
(a) authority to impound given by Congress
(b) executive power – president as the commander-in-chief (c) faithful execution clause
(2) Unstated Residual Powers
- powers which are not found in the Constitution, but he may validly exercise. (Marcos vs. Manglapuz).
- reserved powers of the president
Q: How do you define executive powers?
A: Executive power is neither legislative nor judicial. (This implies that it is very broad.)
APPOINTING POWER - ARTICLE VII, Sec. 16
- correlate with Law on Public Officers
Nature of Appointing Power
- vested in the President; executive in nature - subject only to well-known exceptions
- carries with it the removal power (power to hire carries with it the power to fire)
Structure of ARTICLE VII, Sec. 16: 2 Paragraphs (1) list of officers who are to appointed by the President (2) ad interim appointments
FIRST SENTENCE, FIRST PARAGRAPH
Q: Will all appointments of the President require confirmation of the Commission on Appointments?
A: Not all appointments require confirmation under the present Constitution.
Only those officers enumerated in the 1st sentence require confirmation.
(Sarmiento vs. Mison)
- Under the 1935 Constitution, all appointments need confirmation.
- Under the 1973 Constitution, all appointments no longer need confirmation (because Congress was then abolished by President Marcos).
- Experience shows that when all appointments required Confirmation, it became a venue for horse-trading and similar malpractices. On the other hand, placing absolute power to make appointments in the President with hardly any check by the legislature, as what happened under 1973 Constitution, leads to abuse of such power. Thus, was perceived the need to establish a ―middle ground‖ between the 1935 and 1973 Constitution.
4 INSTANCES WHERE CONFIRMATION IS REQUIRED (1) Heads of executive departments
- appointment of cabinet secretaries requires Confirmation
- EXCEPTION: Vice-president may be appointed as a member of the Cabinet and such appointment requires no confirmation. (ARTICLE VII, Sec. 3, Par. 2)
(2) Ambassadors, other public ministers and consuls
- those connected with the diplomatic and consular services of the country.
(3) Officers of the armed forces from the rank of colonel or naval captain Q: What about officers of PNP of equivalent ranks?
A: No.
MANALO VS. SISTOZA
- President Aquino promoted 15 police officers by appointing them to positions in the PNP with the rank of Chief Superintendent to Director.
Without their names submitted to the Commission on Appointments for confirmation, the said police officers took their oath and assumed their respective positions. Manalo questioned this on the ground that both under Sec. 16, ARTICLE VII of the 1987 Constitution and RA. 6975 (Local Govt Act of 1990) require their appointments to be submitted for confirmation and that PNP is akin to the AFP.
SC: Only presidential appointments belonging to the first group require confirmation by the Commission on Appointments. The appointments of police officers who are not within the first category need not be confirmed by the Commission on Appointments. Consequently, unconstitutional are Sections 26 and 31 of RA. 6975 which empowers the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed.
- The PNP is separate and distinct from the AFP. The Constitution no less, sets forth the distinction. Under Sec. 4, ARTICLE XVII, ―the armed forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the state.‖ On the other hand, Sec. 6 of the same article ordains that: ―The state shall establish and maintain one police force, which shall be national in scope and civilian in character to administered and controlled by a national police
commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.
- To so distinguish the police force from the armed force, Congress enacted RA. 6975. Thereunder the police force is different from and independent of the armed forces and the ranks int eh military are not similar to those in the PNP.
- Present PNP is no longer part of the AFP; is a civilian institution placed under DILG. Unlike PCINP, which is a part of AFP, it is in fact armed forces.
(4) Other officers of the government whose appointments are vested in him in this Constitution
EX: Chairmen and members of CSC, Comelec, COA (by express provision) Regular members of JBC (ARTICLE VII, Sec. 8, Par. 2)
EXCEPTION: Judges, Justices, Ombudsman (by the creation of the JBC, their appointments no longer require confirmation)
Sectoral representatives in Congress (Teresita Quintos deles et al vs.
Commision on Constitutional Commission)
SECOND SENTENCE
INSTANCES WHEN CONFIRMATION IS NO LONGER REQUIRED
(1) All other officers of the government whose appointments are not otherwise provided by law
(2) Those who he may be authorized by law to appoint
The Congress may, by law, vest the appointment of other officers lower in rank in the president alone, in the courts, or in the heads of departments, agencies, commissions or boards.
SARMIENTO VS. MISON
- It is evident that the position of Commissioner of Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on appointments is required.
MARY CONCEPCION BAUTISTA VS. SALONGA
- The appointment of the chairman and members of the Commission on Human Rights is not specifically provided for in the Constitution itself. Unlike the Chairmen and Members of the CSC, the Comelec and the COA, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. The Human Rights pursuant to the second sentence in Sec. 16, ARTICLE VII, that is, without the Confirmation of the Commission on Appointments because they are among the officers of the government whom he may be authorized by law to appoint. And Sec. 2(c) EO. 135 (5 May 1987) authorizes the President to appoint the chairman and members of the Commission on Human Rights.
CALDERON VS. CARALE
- Calderon questions the constitutionality and legality of the permanent appointments extended by the President to respondents chairman and members of the NLRC without submitting the same to the Commission on Appointments for confirmation pursuant to ARTICLE 215 of the Labor Code, as amended by RA. 6715 (Herrrera-Veloso Law or the Act amending the Labor Code reorganizing the NLRC)
SC: The NLRC Chairman and Commissioners fall within the 2nd sentence of Sec. 16, ARTICLE VII of the Constitution more specifically under the ―third group‖ of appointees – those whom the President may be authorized by law to appoint. Undeniably, the chairman and members of the NLRC are not among the officers mentioned in the 1st sentence of Sec. 16, ARCTICLE VII whose appointments require confirmation by the Commission on Appointments. To the extent that RA. 6715 requires confirmation by the Commission on Appointments of the appointments of respondent chairman and members of NLRC, it is unconstitutional.
- SC clarified that this list is EXCLUSIVE. Congress by a mere legislative act may not validly amend the constitution by adding or deducting anything from that list
SECOND PARAGRAPH: AD INTERIM APPOINTMENTS Q: What are ad interim appointments?
A: AD INTERIM literally means ―in the meantime‖ or ―for the time being‖.
- These are appointments made by the President when Congress is not in session.
- Sec. 16, ARTICLE VII, Par. 2 should be correlated to Sec. 19, ARTICLE VI – ―xxx The Commission on Appointments shall meet only while the Congress is in session xxx‖.
- RATIONALE: Commission on Appointments meets when Congress is in session so that even if Congress is not in session, the President is not precluded from making an appointment.
Q: What are regular appointments?
A: These are appointments made by the President when Congress is in session.
Q: What is the real distinction between the two?
A: The real distinction between ad interim and regular appointment lies in the effectivity of the appointment.
AD INTERIM REGULAR
takes effect immediately does not take effect immediately;
takes effect only upon confirmation by the Commission on Appointments there is risk of losing both positions
(upon assumption of new office),
he loses his former position
no risk involved (appointee cannot assume until appointment is confirmed)
actually, the President appoints, subject only to the resolutory condition that it be confirmed later on
actually, the President does not appoint; he merely nominates subject to confirmation by the
by the Commission on Appointments Commission on Appointments
MATIBAG VS. BENIPAYO
- Benipayo, Tuason, and Borra were appointed Chairman and Commissioners respectively of the COMELEC by the President when Congress was not in session. These ad interim appointments were by-passed by the Commission on Appointments. However, they were subsequently re-appointed by the President to the same positions. Upon assumption to office, Benipayo transferred Matibag to another department.
Matibag now questions the validity of the appointments on the grounds that:
(1) the ad interim appointments violate ARTICLE IX-C, Sec. 1, Par. 2 – ―In no case shall any member be appointed or designated in a temporary or acting capacity (Matibag is of the impression that such ad interim appointments are temporary because they are revocable at the will of the President); and (2) even assuming they are valid, their re-appointment violates ARTICLE IX-C, Sec. 1, Par. 2 – ―The chairman and the commissioners shall be appointed xxx for a term of seven years without reappointment.‖
SC: (1) An ad interim appointment is permanent in character (Summers vs.
Ozaeta). The Consitution imposes no condition on the effectivity of an ad interim appointment and thus an ad interim takes effect immediately.
- The Constitution itself makes ad interim permanent appointment.
- An ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. (Marohombsar vs. CA)
(2) There are four situations where ARTICLE IX-C, Sec. 1, Par. 2 will apply:
a) where an ad interim appointee to the Comelec, after confirmation by the Commission on appointment, serves his full seven-year term;
b) where the appointee, after confirmation, swerves a part of his term and then resigns before his seven-year term of office ends;
c) where the appointee is confirmed to serve the unexpired term of someone who died or resigned and the appointee completes the unexpired term;
d) where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation.
- 2nd issue is of first impression! (not yet asked in the bar)
- In any of these four situations, it presupposes that the appointment had already been confirmed by the Commission on Appointments. It will not apply in this case where the appointments were by-passsed.
Q: What if the appointments were actually disapproved and not simply by-passed, can they still be validly reappointed?
A: No. The disapproval is actually a judgment on the merits of their qualification. The principle of checks and balances will come into play.
PIMENTEL VS. ERMITA
- The cabinet secretaries were appointed as acting secretaries of their respective departments while Congress is in session. Thus, the Senators filed a petition to compel the president to extend regular appointments.
SC: Nature of the Power to Appoint
- The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this power except in those instances when the Constitution expressly allows it to interfere.
- Appointment is discretionary.
- The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in a n office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office.
- Hence, the President cannot be compelled especially since the positions of cabinet secretary require trust and confidence.
Distinctions between Ad Interim and Acting Appointments
Ad Interim Acting Appointments extended only during a recess of
Congress
extended anytime there is a vacancy
permanent in nature merely temporary
requires confirmation by the Commission on Appointments
does not require such confirmation
Note: Mootness of the Petition – When the Congress adjourned, GMA extended ad interim appointments but this is an exception because the case is capable of repetition yet evading review.
LIMITATIONS ON THE APPOINTING POWER OF THE PRESIDENT (1) ARTICLE VII, Sec. 13, Par. 2 – ―The spouse and relative by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure be appointed as member of the Constitutional Commissions, or the Office of the Ombudsman, or as secretaries, undersecrataries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.‖
(nepotic appointments)
- This is a prohibition against NEPOTISM on the President.
Q: To what positions?
A: (1) Constitutional Commissions – COA, Comelec, CSC
(2) Office of the Ombudsman (3) Secretaries
(4) Undersecretaries
(5) Chairmen or heads of bureaus or offices, including GOCC‘s and their subsidiaries
(2) ARTICLE VII, Sec. 15 – ―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 appointment to executive positions when continued vacancies therein will prejudice public service or endanger public safety.‖
- This applies only to a presidential election: every 6 years.
Q: To what kind of appointment is this directed against?
A: This is directed against 2 types of appointments: (In Re: Valenzuela and Vallaria)
(1) those made for buying votes (to influence the outcome of Presidential elections)
- refers to those appointments made within the 2 months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code.
(2) those made for partisan considerations (the so-called ―midnight appointments‖)
- refers to appointments made after election day but before the term of the next president begins (30 June).
- Hence, this provision contemplate not only midnight appointments (appointments made for partisan considerations where an outgoing President fells up all vacant positions thereby preempting an incoming president of his prerogative) but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.
AYTONA VS. CASTILLO
- After the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection,
became no more than a ―caretaker‖ administrator, whose duty was to prepare for the orderly transfer of authority to the incoming President.
IN RE: HON. MATEO VALENZUELA AND HON. PLACIDO VALLARTA - Before the 11 May 1998 elections, President Ramos appointed on 30 March 1998 2 gentlemen as RTC judges. On 14 May 1998, already after the elections, their appointments were transmitted to the Office of the Chief Justice. However, the 2 were able to secure advance copies of their appointments so they were able to take their oaths and assumed office.
SC: The questioned appointments are void. They were unquestionably made during the period of the ban. Consequently, they come within the prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the elections.
- The only exception is temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. However, this case does not even fall within the exception. Their appointments are not temporary and not to an executive but to the judiciary.
Q: How do you detect if it‘s a midnight appointment or for purpose of vote-buying?
A: If the appointment was made within 2 months immediately preceding the presidential election, then the purpose is for vote-buying or to influence the outcome of the elections. IF the appointment was made after the Presidential election but before the outgoing president‘s term end (his term ends noon of June 30), then it is midnight appointment.
DE RAMA VS. CA
- Ma. Evelyn S. Abeja was a municipal Mayor. When her term is about to end, she filled up all the positions before she vacated her position. When her successor sit, there was no more vacancy and all the appointments were nullified by the latter on the ground that they were midnight appointments.
SC: The records reveal that when De Rama brought the matter of recalling the appointments of the 14 respondents before the CSC, the only reason he cited to justify his action was that these were ―midnight appointments‖ that are forbidden under ARTICLE VII, Sec. 15 of the Constitution. However, the CSC ruled and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure.
(3) ARTICLE VII, Sec. 13, Par. 1 – ―The President, Vice President, the Members of the Cabinet and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege, granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned and controlled corporations or their subsidiaries. They shall strictly avoid conflict in the conduct of their office.‖
- This is a prohibition against HOLDING MULTIPLE POSITIONS.
Q: Directed against whom?
A: (1) President (2) Vice President
(3) Member of the Cabinet and their deputies or assistants - applies to private employment
- the idea is for them to focus in their functions Q: What are the exceptions?
A: (1) unless otherwise provided in this Constitution
EX: The Vice President may be appointed as a Member of the Cabinet xxx. (ARTICLE VII, Sec. 3, Par. 2)
The Secretary of Justice is an ex-officio Member fo the Judicial and Bar Council (ARTICLE VIII, Sec. 8, Par. 1)
(2) If they will hold that other office in an ex-officio capacity. (Civil Liberties Union vs. Exec. Sec.)
CIVIL LIBERTIES UNION VS. EXECUTIVE SECRETARY
President Aquino issued EO 284 allowing member of cabinet to hold not more than 2 other positions in the government including government-owned and controlled corporations. EO 284 was issued when President Aquino still exercises legislative powers. The idea was to have them earn more.
Pursuant to EO 284, President Aquino appointed member of her Cabinet to
SC: The contention of Civil Liberties Union is correct. Section 7, ARTICLE IX-B, Par. 2 (―Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.‖) is meant to lay down the general rule applicable to all appointive public officials and employees while Section 13, ARTICLE VII is meant to be the exception applicable only to the President, Vice President,
SC: The contention of Civil Liberties Union is correct. Section 7, ARTICLE IX-B, Par. 2 (―Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.‖) is meant to lay down the general rule applicable to all appointive public officials and employees while Section 13, ARTICLE VII is meant to be the exception applicable only to the President, Vice President,