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 other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.
A. Definition of Appointment
Definition of Appointment. Appointment is the selection, by the authority vested with the power, of
an individual who is to exercise the functions of a given office.288
It is distinguished from designation in that the latter simply means the imposition of additional duties, usually by law, on a person already in the public service.
It is also different from the commission in that the latter is the written evidence of the appointment. B. Nature of Power of Appointment
1. Executive in Nature 2. Non-delegability 3. Necessity of Discretion
1. Executive in Nature
Appointing power is executive in nature. (Government v. Springer) Indeed, the filling up of an office created by law is the implementation or execution of law.289
Although, intrinsically executive and therefore pertaining mainly to the President, the appointing power may be exercised by the legislature and by the judiciary, as well as the Constitutional Commissions, over their own respective personnel (See art 6 sec 16 (last sentence), Article VIII etc.) Implication. Since appointment to office is an executive function, the clear implication is that the legislature may not usurp such function.
The legislature may create an office and prescribe the qualifications of the person who may hold the office, but it may neither specify who shall be appointed to such office nor actually appoint him.290
2. Non-delegability.
Facts: The Minister of Tourism designate petitioner as general manager of the Philippine Tourism Authority. When a new Secretary of Tourism was appointed, the President designated [him] as a general manager of the PTA on the ground that the designation of petitioner was invalid since it is not made by the President as provided for in PD 564. Petitioner claimed that his removal was without just cause.
Held: The appointment or designation of petitioner by the Minister of Tourism is invalid. It involves the exercise of discretion, which cannot be delegated. Even if it be assumed that the power could be exercised by the Minister of Tourism, it could be recalled by the President, for the designation was provisional.291 (Binamira v. Garrucho)
3. Necessity of Discretion
Discretion is an indispensable part in the exercise of power of appointment. Congress may not, therefore, enact a statute which would deprive the President of the full use of his discretion in the nomination and appointment of persons to any public office. Thus it has been held that a statute
288 Cruz, Philippine Political Law, p. 189 (1995 ed). 289Bernas Commentary, p 839 (2003 ed). 290 Bernas Primer at 305 (2006 ed.)
unlawfully limits executive discretion in appointments when it provides for the drawing of lots as a means to determine the districts to which judges of first instance should be assigned by the Chief Executive.292 Congress may not limit the
President’s choice to one because it will be an encroachment on the Prerogative of the President.293
Appointment is essentially a discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee, if issued a permanent appointment, should possess the minimum qualification requirements, including the Civil Service eligibility prescribed by law for the position. This discretion also includes the determination of the nature or character of the appointment, i.e., whether the appointment is temporary or permanent.294
The power to appoint includes the power to decide who among various choices is best qualified provided that the person chosen has the qualification provided by law.295 Even the next-in-
rank rule of the Civil Service Code cannot be read as binding the appointing authority to choose the first in the order of rank when two or more possess the requisite qualifications.296
Q: The Revised Administrative Code of 1987 provides, “All provincial and city prosecutors
and their assistants shall be appointed by the President upon the recommendation of the Secretary.” Is the absence of recommendation
of the Secretary of Justice to the President fatal to the appointment of a prosecutor? A: Appointment calls for discretion on the part of the appointing authority. The power to appoint prosecutors is given to the President. The Secretary of Justice is under the control of the President. Hence, the law must be read simply as allowing the Secretary of Justice to advice the President. (Bermudez v. Secretary, 1999)
C. Classification of Appointment (1994 Bar Question) 1. Permanent
2. Temporary 3. Regular 4. Ad Interim
1. Permanent (2003 Bar Question)
292 Sinco, Philippine Political Law, p 272 (1954ed).
293 Flores v. Drilon, 223 SCRA 568.
294 Antonio B. Nachura, Outline/Reviewer in Political Law 274
(2006 ed.)
295 Bernas Primer at 305 (2006 ed.) 296 Bernas Commentary, p 840 (2003 ed).
Permanent appointments are those extended to persons possessing eligibility and are thus protected by the constitutional guarantee of security of tenure. 297
2. Temporary (2003 Bar Question)
Temporary appointments are given to persons without such eligibility, revocable at will and without the necessity of just cause or a valid investigation298; made on the understanding that
the appointing power has not yet decided on a permanent appointee and that the temporary appointee may be replaced at any time a permanent choice is made.
Not subject to CA confirmation. A temporary appointment and a designation are not subject to confirmation by the Commission on Appointments. Such confirmation, if given erroneously, will not make the incumbent a permanent appointee. (Valencia v. Peralta) 3. Regular
A regular appointment is one made by the President while Congress is in session; takes effect only after confirmation by the Commission on Appointments, and once approved, continues until the end of the term of the appointee.
4. Ad Interim (1991, 1994 Bar Question)
An ad interim appointment is one made by the President while Congress is not in session; takes effect immediately, but ceases to be valid if disapproved by the Commission on Appointments or upon the next adjournment of Congress. In the latter case, the ad interim appointment is deemed “by-passed” through inaction.
The ad interim appointment is intended to prevent interruptions in vital government services that would otherwise result form prolonged vacancies in government offices.
Ad interim appointment is a permanent appointment. It is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. (Matibag v. Benipayo, 2002) Ad interim appointed, how terminated.
1. Disapproval of the appointment by the Commission on Appointments; 2. Adjournment by Congress without the
CA acting on the appointment.
297Cruz, Philippine Political Law, p. 190 (1995 ed). 298 Cruz, Philippine Political Law, p. 190 (1995 ed).
There is no dispute that when the
Commission on Appointments
disapproves an ad interim appointment, the appointee can no longer be extended a new appointment, inasmuch as the approval is a final decision of the Commission in the exercise of its checking power on the appointing authority of the President. Such disapproval is final and binding on both the appointee and appointing power. But when an ad interim appointment is by- passed because of lack of time or failure of the Commission on Appointments to organize, there is no final decision by the Commission to give or withhold its consent to the appointment. Absent such decision, the President is free to renew the ad interim appointment. (Matibag v. Benipayo)
Q: What happens if a special session is called and that session continues until the day before the start of the regular session? Do appointments given prior to the start of the special session lapse upon the end of the special session or may they continue into the regular session?
A: Guevara v. Inocente again says that there must be a “constructive recess” between the sessions and thus appointments not acted upon during the special session lapse before the start of the regular session.299
Difference between an ad interim appointment and an appointment in an acting capacity. 1. The former refers only to positions which need
confirmation by the CA while the latter is also given to those which do not need confirmation. 2. The former may be given only when Congress
is not in session whereas the latter may be given even when Congress is in session. Acting Capacity. The essence of an appointment in an acting capacity is its temporary nature. In case of a vacancy in an office occupied by an alter ego of the President, such as the Office of Department Secretary, the President must necessarily appoint the alter ego of her choice as Acting Secretary before the permanent appointee of her choice could assume office.
Congress, through law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. “An
alter ego, whether temporary or permanent, holds
a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her
alter ego should be.”Acting appointments are a
way of temporarily filling important offices, but if
299
abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments.
However, we find no abuse in the present case. The absence of abuse is apparent from President Arroyo’s issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year. (Pimentel v. Ermita, 2005)
D. Kinds of Presidential Appointment
1. Appointments made by an Acting President (Section 14)
2. Appointments made by the President within two months before the next presidential elections and up to the end of his term. (Section 15)
3. Regular Appointments (Section 16)
4. Recess or Ad interim Appointments (Section 13)
E. Scope of the Power to Appoint
Officials to be Appointed by the President
1.
Those officials whose appointments are vestedin him by the Constitution. (See Section 16, 1st
sentence)
• Heads of executive departments • Ambassadors, other public ministers
and consuls
• Officers of the armed forces from rank of colonel or naval captain • Article VIII, Section 9 provides that
the President appoints member of the SC and judges of lower courts
•
The President also appoints members of JBC, chairmen and members of the constitutional commissions (art 9,B, Sec 1(2); C, Section 1(2)), the Ombudsman and his deputies (art 11, sec 9).• Appointment of Sectoral
Representatives (art 18 sec 7) (Quintos-Deles v. Commission on Appointments)
2.
Those whom he may be authorized by law(Section 16, 2nd sentence)
3.
Any other officers of the government whose appointments are not otherwise provided by law (Constitution or statutes). (Section 16, 2ndsentence)
Significance of enumeration in Section 16, 1st
sentence. The enumeration means that Congress may not give to any other officer the power to appoint the above enumerated officers.300
F. Appointments needing the Confirmation of CA
CA Confirmation Exclusive List
1. What appointments need confirmation by the Commission on Appointments? (1999 Bar Q) Those enumerated in the 1st sentence of Section
16:
1. Heads of executive departments
2. Ambassadors, other public ministers and consuls
3. Officers of the armed forces from rank of colonel or naval captain
4.
Those other officers whose appointments are vested in him in the Constitution.(Sarmiento v. Mison) (Note: Although the power to appoint Justices, judges, Ombudsman and his deputies is vested in the President, such appointments do not
need confirmation by the Commission on
Appointments)
Why from rank of colonel. The provision hopefully will have the effect of strengthening civilian supremacy over the military301 To some
extent, the decision of the Commission was influenced by the observation that coups are generally led by colonels.302
Military officers. The clause “officers of the armed forces from the rank of colonel or naval captain” refers to military officers alone. Hence, promotion and appointment of officers of Philippine Coast Guard which is under the DOTC (and not under the AFP), do not need the confirmation of Commission on Appointments. (Soriano v. Lista, 2003) Also, promotion of senior officers of the PNP is not subject to confirmation of CA. PNP are not members of the AFP. (Manalo v. Sistoza, 1999)
Chairman of CHR. The appointment of the Chairman of the Commission on Human Rights is not provided for in the Constitution or in the law. Thus, there is no necessity for such appointment to be passed upon by the Commission on Appointments. (Bautista v. Salonga)
2. Exclusive list
The Congress cannot by law require the confirmation of appointments of government officials other than those enumerated in the first sentence of Section 16 of Article VII. (Calderon v. Carale)
301 Bernas Commentary, p 844 (2003 ed). 302 II RECORD 394-395.
G. Steps in the Appointing Process (where COA confirmation is needed)
1. Nomination by the President
2. Confirmation of the Commission on Appointments 3. Issuance of the Commission
Acceptance. An appointment is deemed complete only upon its acceptance. Pending such acceptance, the appointment may still be withdrawn. (Lacson v. Romero)
Appointment to a public office cannot be forced upon any citizen except for purposes of defense of the State under Article II Section 4.
H. Appointment of Officers Lower in Rank Section 16 (3rd sentence of first paragraph)
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.
Significance of the phrase “the President alone”. Alone means to the exclusion of the courts, the heads of departments, agencies, commissions or boards. 303
Appointing authority may also be given to other officials. Thus Section 16 says: “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.” In Rufino v Endriga304
interpreted this to mean that, when the authority is given to collegial bodies, it is to the chairman that the authority is given. But he can appoint only officers “lower in rank,” and not officers equal in rank to him. Thus a Chairman may not appoint a fellow member of a Board.
I. Limitations on the President’s Appointing Power Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or reassumption of office.
Section 15. Two months immediately before the