2. Power of Appointment

Power of Appointment

• Process of Confirmation by the Commission on Appointments
• Bypassed Appointments and their Effects
• Appointments by an Acting President
• Scope of Midnight Appointments
• Ad-Interim Appointments
• Disciplinary Power (Suspension and Removal)

Power of Appointment

1987 CONST., art. VII, secs. 13, 15 and 16

> SECTION 13. 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 or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. SECTION 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 appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. SECTION 16. 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 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.

Updated: An appointment requires the appointee’s acceptance before assumption of office, whether by oath or another positive act (Garafil v. Office of the President, G.R. No. 203372, 16 June 2015).

Nature of the Power to Appoint

Executive in nature; while Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President’s prerogative.

In case of vacancy in an 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. Congress, through a 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 (Pimentel v. Ermita, G.R. No. 164978, Oct. 13, 2005).

The Constitutional Limitations on the President’s appointing power

The President may not appoint his/her spouse and relatives by consanguinity or affinity within the 4th civil degree as members of the:

• Constitutional Commissions
• Ombudsman
• Department Secretaries
• Undersecretaries
• Chairmen and heads of Bureaus and Offices
• Chairmen or heads of government-owned or controlled corporations and their subsidiaries (PHIL. CONST., art. VII, § 13)

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 (PHIL. CONST., art. VII, § 14)

Two months immediately before the next Presidential elections and up to the end of his/her 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 (PHIL. CONST., art. VII, § 15).

The appointment of 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 require the consent of the Commission on Appointments (PHIL. CONST., art. VII, § 16).

Updated: An appointment is valid only after the required steps, including the appointee’s acceptance, are completed (Garafil v. Office of the President, G.R. No. 203372, 16 June 2015).