Published — July 01, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
“The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power.”
(Velicario-Garafil v. Office of the President, G.R. No. 203372, June 16, 2015.)
After reading “What is the Power of Appointment of the President of the Philippines?”, read also “When does the term of office of a newly-elected President of the Philippines begin?”
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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.
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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.
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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 disapproved by the Commission on Appointments or until the next adjournment of the Congress. (Source: Section 16 of Article VII of the 1987 Philippine Constitution.)
Appointment refers to the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. 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. (Nachura, Outline Reviewer in Political Law, 2014, p. 290.)
The law says:
Section 16 of Article VII of the 1987 Philippine Constitution provides that:
“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 disapproved by the Commission on Appointments or until the next adjournment of the Congress.”
Under the above-quoted provision, there are two kinds of presidential appointments:
1) regular appointments or nominations, or those appointments made during the session of Congress; and
2) ad interim appointments or those appointments made during the recess of Congress.
Book III, Title I, Chapter 5 of Executive Order No. 292 or the Administrative Code of 1987 states that the President shall exercise the power to appoint such official as provided for in the Constitution and laws. To wit:
SECTION 16. Power of Appointment. – The President shall exercise the power to appoint such officials as provided for in the Constitution and laws.
SECTION 17. Power to Issue Temporary Designation. –
(1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when:
(a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or
(b) there exists a vacancy;
(2) The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned.
(3) In no case shall a temporary designation exceed one (1) year.
What are regular appointments?
Regular appointment or nomination refer to those appointments made during the session of Congress.
The regular appointments contemplated under the first paragraph of Article VII, Section 16 of the 1987 Constitution undergo a process which involves 1) nomination by the President, 2) confirmation by the Commission on Appointments, 3) issuance of the commission, and 4) the subsequent acceptance by the nominee or appointee.
The President sends a nomination to the Commission on Appointments, and the Commission thereafter gives its consent. Only then will the President issue the appointment, and the nominee or appointee may take his oath of office.
A regular appointment takes effect only after the confirmation by the Commission on Appointments. Once approved, such appointment continues until the end of the term of the appointee.
What are ad interim appointments?
Ad interim appointments refer to those appointments made during the recess of Congress.
The second paragraph of Article VII, Sec. 16, of the 1987 Constitution also vests the President the power to issue appointments while Congress is not in session. An ad interim appointment is permanent in nature and takes effect immediately. As such, it undergoes a process that involves appointment and confirmation by the Commission. An officer who was issued an ad interim appointment may immediately assume office and discharge his/her functions.
An ad interim appointment ceases to be valid upon disapproval by the Commission on Appointments or, if not confirmed, until the next adjournment of Congress. It is intended to prevent interruptions in essential government services that could otherwise result from prolonged vacancies in government offices.
Are there limitations on the President’s appointing power?
The law says:
- The President may not appoint his spouse and relatives by consanguinity or affinity within the fourth civil degree 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 13, Art. VII, 1987 Constitution.)
- 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 14, Art. VII, 1987 Constitution.)
- 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 15, Art. VII, 1987 Constitution.)
Jurisprudence says:
“Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official xxx.” (Dennis Funa v. Executive Secretary Eduardo Ermita, G.R. No. 184740, February 11, 2010)
Can Congress make a law creating a government body wherein the appointment of the officials is subject to the confirmation of the Commission on Appointments?
In the case of Manalo v. Sistoza (G.R. No. 107369, August 11, 1999), the Supreme Court held that:
“Congress cannot by law expand the power of confirmation of the Commission on Appointments and require confirmation of appointments of other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution.”
Is the exercise of power by the President discretionary in nature?
In the case of Velicaria-Garafil v. Office of the President (G.R. No. 203372, June 16, 2015), the Supreme Court held that:
“The President’s exercise of his power to appoint officials is provided for in the Constitution and laws. Discretion is an integral part in the exercise of the power of appointment. Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., “the choice of a person to fill an office constitutes the essence of his appointment,” and Mr. Justice Malcolm adds that an “[a]ppointment to office is intrinsically an executive act involving the exercise of discretion.”
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment.”
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