d. Scope of Midnight Appointments

Rule on Midnight Appointments Ban

• General Rule: 2 months immediately before the next presidential elections (the presidential election is held on the second Monday of May), and up to the end of his “term” (June 30), a President (or Acting President) shall not make appointments [Section 15, Article VII, 1987 Constitution].
• Exception: Temporary appointments to executive positions, when continued vacancies will: (1) Prejudice public service; or (2) endanger public safety.
• Limited to Executive Departments: The prohibition against midnight appointment applies only to positions in the executive department [De Castro v. JBC, G.R. No. 191002 (2010)].
• Limited to Caretaker Capacity: While “midnight appointments” (i.e. made by outgoing President near the end of his term) are not illegal, they should be made in the capacity of a “caretaker” [a new president being elected], doubly careful and prudent in making the selection, so as not to defeat the policies of the incoming administration. Hence, the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may be regarded as abuse of presidential prerogatives [Aytona v. Castillo, G.R. No. L-19313 (1962)]. It must be shown that there is regard for the fitness of appointees and the filling up must be few and so spaced which indicates there was a deliberate action taken by the appointing power.
• Applies only to the President: Ban does not extend to appointments made by local elective officials. There is no law that prohibits local elective officials from making appointments during the last day of his/her tenure [De Rama v. CA, G.R. No. 131136 (2001)].
• Appointing power of the Acting President
• Appointments extended by an Acting President shall remain effective unless revoked by the elected President within 90 days from his assumption or reassumption of office [Section 14, Article VII, 1987 Constitution].
• Midnight appointments ban applies to the acting President.

MIDNIGHT APPOINTMENT

General Rule: Two (2) months immediately before the next Presidential elections and up to the end of his term, the President or Acting President shall not make appointments. This is to prevent the practice of making “midnight appointments.” (PHIL. CONST., art. VII, § 15).

Exceptions

• Temporary appointments to executive positions if continued vacancies will prejudice public service or endanger public safety.
• Prohibition does not extend to appointments in the Supreme Court. Had the framers intended to extend the prohibition to the appointment of Members of the Supreme Court, they could have explicitly done so. The prohibition is confined to appointments in the Executive Department. Existence of the JBC also prevents possible abuses in appointment (De Castro v JBC, G.R. No. 191002, April 20, 2010); overturned In re: Appointment of Valenzuela, A.M. 98-5-01- SC, Nov. 9, 1998).
• There is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Prohibition only applies to appointments by the President (De Rama v. CA, G.R. No. 131136, Feb. 28, 2001).
• If the President is not satisfied with the list submitted by the JBC, he may ask for another list. But once the appointment is issued by the President and accepted by the nominee, it needs no further confirmation.
• President may appoint SC Justice within 60 days prior to election. Article VII deals entirely with the executive department while Article VIII deals with the judiciary. Had the framers intended to extend the 60-day prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court. The usage in Section 4 (1), Article VIII of the word shall – an imperative, operating to impose a duty that may be enforced – should not be disregarded.
• The framers did not need to extend the prohibition against midnight appointments to appointments in the Judiciary, because the establishment of the JBC and subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. JBC intervention eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments (De Castro v. JBC, G.R. No. 191002, April 20 2010).

Prohibition against Midnight Appointments applicable to Presidential Appointments only (LEONEN)

The prohibition on midnight appointments under Article VII, Sec 15 only applies to presidential appointments. It does not apply to appointments made by local chief executives. Nevertheless, the Civil Service Commission has the power to promulgate rules and regulations to professionalize the civil service. It may issue rules and regulations prohibiting local chief executives from making appointments during the last days of their tenure.

Appointments of local chief executives must conform to these civil service rules and regulations in order to be valid. (Provincial Government of Aurora v Marco, G.R. No. 202331, April 22, 2015)