C. Powers of the President

Frequency: ★★★★★ | Probability: ★★★★☆

1. General executive and administrative powers

Control over Executive Department. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Section 17, Article VII, 1987 Constitution)

Address Congress. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. (Section 23, Article VII, Ibid.)

2. Power of appointment

a. In general

1) Nominate and appoint

Scope of appointing power. The President shall:

1) 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. (Section 16, Article VII, Ibid.)

2) 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. (Section 16, Article VII, Ibid.)

Authority of Congress. 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. (Section 16, Article VII, Ibid.)

Appointments by Acting President. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety (90) days from his assumption or reassumption of office. (Section 14, Article VII, Ibid.)

Discretionary act. 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. (Velicaria-Garafil v. Office of the President, En Banc, G.R. No. 203372, 16 June 2015)

Velicaria-Garafil v. Office of the President (2015)
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.

2) Types of appointments

The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. (Section 16, E.O. 292, Administrative Code)

a) Permanent Appointment

Concept. A permanent appointment shall be issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. (Section 25[a], P.D. 807, Civil Service Decree; Amores v. CSC, G.R. No. 170093, 29 April 2009)

b) Temporary appointments

Concept. An appointment is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility. (Amores v. CSC, supra.)

General Rule: The power to appoint vested in the President includes the power to make temporary appointments. (General v. Urro, supra.)
Exception/s:
1) He is otherwise specifically prohibited by the Constitution or by the law; or
2) Where an acting appointment is repugnant to the nature of the office involved. (Ibid.)

c) Prohibited Appointments

General Rule: Two (2) months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments.  (Section 15, Article II, 1987 Constitution)
Exception/s:
1) Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety;
2) Appointments to the judiciary. (Ibid.)

3) Elements for Appointments

Elements for Appointments:
The following elements should always concur in the making of a valid (which should be understood as both complete and effective) appointment: 1) Authority to appoint and evidence of the exercise of the authority; 2) Transmittal of the appointment paper and evidence of the transmittal; 3) A vacant position at the time of appointment; and 4) Receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications. (Velicaria-Garafil v. Office of the President, 2015)

Concurrence of all elements. The concurrence of all these elements should always apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban. These steps in the appointment process should always concur and operate as a single process. (Ibid.)

a) Appointing Authority

The President’s exercise of his power to appoint officials is provided for in the Constitution and laws. (Ibid.)

b) Transmittal

Concept. It is not enough that the President signs the appointment paper. There should be evidence that the President intended the appointment paper to be issued. It could happen that an appointment paper may be dated and signed by the President months before the appointment ban, but never left his locked drawer for the entirety of his term. Release of the appointment paper through the Malacañang Records Office (MRO)

 is an unequivocal act that signifies the President’s intent of its issuance. (Ibid.)

Velicaria-Garafil v. Office of the President (2015)
The MRO’s exercise of its mandate does not prohibit the President or the Executive Secretary from giving the appointment paper directly to the appointee. However, a problem may arise if an appointment paper is not coursed through the MRO and the appointment paper is lost or the appointment is questioned. The appointee would then have to prove that the appointment paper was directly given to him.
The possession of the original appointment paper is not indispensable to authorize an appointee to assume office. If it were indispensable, then a loss of the original appointment paper, which could be brought about by negligence, accident, fraud, fire or theft, corresponds to a loss of the office. However, in case of loss of the original appointment paper, the appointment must be evidenced by a certified true copy issued by the proper office, in this case the MRO.

c) Vacant Position

Concept. An appointment can be made only to a vacant office. An appointment cannot be made to an occupied office. The incumbent must first be legally removed, or his appointment validly terminated, before one could be validly installed to succeed him. (Ibid.)

Velicaria-Garafil v. Office of the President (2015)
To illustrate: in Lacson v. Romero, Antonio Lacson (Lacson) occupied the post of provincial fiscal of Negros Oriental. He was later nominated and confirmed as provincial fiscal of Tarlac. The President nominated and the Commission on Appointments confirmed Honorio Romero (Romero) as provincial fiscal of Negros Oriental as Lacson’s replacement. Romero took his oath of office, but Lacson neither accepted the appointment nor assumed office as provincial fiscal of Tarlac. This Court ruled that Lacson remained as provincial fiscal of Negros Oriental, having declined the appointment as provincial fiscal of Tarlac. There was no vacancy to which Romero could be legally appointed; hence, Romero’s appointment as provincial fiscal ofNegros Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano… “there is no power in this country which can compel a man to accept an office.” Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as such fiscal of Negros Oriental.

d) Acceptance

Concept; Indispenable act. Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount to acceptance of the appointment. An oath of office is a qualifying requirement for a public office, a prerequisite to the full investiture of the office.

Same; Purpose. Excluding the act of acceptance from the appointment process leads us to the very evil which we seek to avoid (i.e., antedating of appointments). Excluding the act of acceptance will only provide more occasions to honor the Constitutional provision in the breach. The inclusion of acceptance by the appointee as an integral part of the entire appointment process prevents the abuse of the Presidential power to appoint. It is relatively easy to antedate appointment papers and make it appear that they were issued prior to the appointment ban, but it is more difficult to simulate the entire appointment process up until acceptance by the appointee.

Velicaria-Garafil v. Office of the President (2015)
Javier v. Reyes is instructive in showing how acceptance is indispensable to complete an appointment. On 7 November 1967, petitioner Isidro M. Javier (Javier) was appointed by then Mayor Victorino B. Aldaba as the Chief of Police of Malolos, Bulacan. The Municipal Council confirmed and approved Javier’s appointment on the same date. Javier took his oath of office on 8 November 1967, and subsequently discharged the rights, prerogatives, and duties of the office. On 3 January 1968, while the approval of Javier’s appointment was pending with the CSC, respondent Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the . CSC a letter to recall Javier’s appointment. Reyes also designated Police Lt. Romualdo F. Clemente as Officer-in-Charge of the police department. The CSC approved Javier’s appointment as permanent on 2 May 1968, and even directed Reyes to reinstate Javier. Reyes, on the other hand, pointed to the appointment of Bayani Bernardo as Chief of Police of Malolos, Bulacan on 4 September 1967. This Court ruled that Javier’s appointment prevailed over that of Bernardo. It cannot be said that Bernardo accepted his appointment because he never assumed office or took his oath.

b. Confirmation and by-passed appointments

1) Confirmation

4 groups of officers of the government to be appointed by the President:
1) The heads of the executive departments, ambassadors, other public ministers and consuls, 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;
2) All other officers of the Government whose appointments are not otherwise provided for by law;
3) Those whom the President may be authorized by law to appoint;
4) Officers lower in rank whose appointments the Congress may by law vest in the President alone. (Manalo v. Sistoza, 1999)

Group 1 – Presidential appointees. Only presidential appointments belonging to the first group require the confirmation by the Commission on Appointments. (Ibid.)

Manalo v. Sistoza (1999)
[R.A. 6975 expanded the authority of the Commission on Appointments, to include certain officers of the Philippine National Police.]
[Unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed.

2) By-passed appointments

Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission. (Section 17, Rules of the Commission on Appointments)

Concept; Renewal – allowed. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee.

Disapproved ad interim appointment – cannot be revived. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. (Ibid.)

c. Midnight and ad interim appointments

1) Midnight appointments

2 months before next presidential ekections and up to end of the President’ term. 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, Article VII, Ibid.)

Aytona v. Castillo (1962)
On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona as ad interim Governor of the Central Bank. On the same day, the latter took the corresponding oath. On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on December 31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and cancelling all ad interim appointment made by President Garcia after December 13, 1961, (date when he, Macapagal, had been proclaimed elected by the Congress). On January 1, 1962, President Macapagal appointed Andres V. Castillo as ad interim Governor of the Central Bank, and the latter qualified immediately.
[HELD: A.O. No. 2 is valid and constitutional.]
Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30, 1961. But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a “care-taker” administration. He was duty bound to prepare for the orderly transfer of authority the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications may undoubtedly be permitted. But 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, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments.
Normally, when the President makes appointments the consent of the Commission on Appointments, he has benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is bound to be prudent to insure approval of his selection either previous consultation with the members of the Commission or by thereafter explaining to them the reason such selection. Where, however, as in this case, the Commission on Appointments that will consider the appointees is different from that existing at the time of the appointment and where the names are to be submitted by successor, who may not wholly approve of the selections, the President should be doubly careful in extending such appointments. Now, it is hard to believe that in signing 350 appointments in one night, President Garcia exercised such “double care” which was required and expected of him; and therefore, there seems to be force to the contention that these appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of powers, this Court resolves that it must decline to disregard the Presidential Administrative Order No. 2, cancelling such “midnight” or “last-minute” appointments.
Of course the Court is aware of many precedents to the effect that once an appointment has been issued, it cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad interim appointments (three hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a setting similar to that outlined herein. On the other hand, the authorities admit of exceptional circumstances justifying revocation and if any circumstances justify revocation, those described herein should fit the exception.
Velicaria-Garafil v. Office of the President (2015)
Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) issued more than 800 appointments to various positions in several government offices. On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office as President of the Republic of the Philippines. On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing, and revoking appointments issued by President Macapagal-Arroyo which violated the constitutional ban on midnight appointments.
[HELD: E.O. No. 2 is valid and constitutional. Ratio decidendi follows Aytona ruling.]

Exigency – required; Presumption on necessity. In the absence of an exigency that made the appointment urgent or peremptory, the latter constitutes an abuse of power on the part of the Executive. Of course, the determination of the need and urgency of the ad interim appointment corresponds primarily to the President making the appointment, and it is to be presumed that an ad interim appointment was made because it was needed. (Rodriguez, Jr. v. Quirino, En Banc, G.R. No. L-19800, 28 October 1963)

2) Ad interim appointments

Ad interim appointments – during Congress recess. 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 after disapproval by the Commission on Appointments or until the next adjournment of the Congress. (Paragraph 2, Section 16, Article VII, Ibid.)

Permanent appointment. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. (Matibag v. Benipayo, En Banc, G.R. No. 149036, 02 April 2002)

Same; Effective immediately. The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. (Ibid.)

Same; In the meantime. The term “ad interim appointment”, as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. (Ibid.)

When Congress is in session vs. in recess. A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective until disapproval by the Commission on Appointments or until the next adjournment of the Congress. (Pacete vs. Secretary of the Commission on Appointments, En Banc, G.R. No. L-25895, 23 July 1971)

Same; When Congress is in recess, President exercises special privilege. Normally, when the President makes appointments the consent of the Commission on Appointments, he has benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is bound to be prudent to insure approval of his selection either previous consultation with the members of the Commission or by thereafter explaining to them the reason such selection. (Aytona v. Castillo, supra.)

Appointee who has qualified and assumed office – a Government employee; Complete and irrevocable. An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that “[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law.” Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.  Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. (Matibag v. Benipayo, supra.)

Velicaria-Garafil v. Office of the President (2015)
The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytona’s intangible “stratagem to beat the deadline,” and also on the act of “preempting the President’s successor,” which shows a lack of “good faith, morality and propriety.” Subject to only one exception, appointments made during this period are thus automatically prohibited under the Constitution, regardless of the appointee’s qualifications or even of the President’s motives. The period for prohibited appointments covers two months before the elections until the end of the President’s term. The Constitution, with a specific exception, ended the President’s power to appoint “two months immediately before the next presidential elections.” For an appointment to be valid, it must be made outside of the prohibited period or, failing that, fall under the specified exception.
The President exercises only one kind of appointing power. There is no need to differentiate the exercise of the President’s appointing power outside, just before, or during the appointment ban. The Constitution allows the President to exercise the power of appointment during the period not covered by the appointment ban, and disallows (subject to an exception) the President from exercising the power of appointment during the period covered by the appointment ban. The concurrence of all steps in the appointment process is admittedly required for appointments outside the appointment ban. There is no justification whatsoever to remove acceptance as a requirement in the appointment process for appointments just before the start of the appointment ban, or during the appointment ban in appointments falling within the exception. The existence of the appointment ban makes no difference in the power of the President to appoint; it is still the same power to appoint. In fact, considering the purpose of the appointment ban, the concurrence of all steps in the appointment process must be strictly applied on appointments made just before or during the appointment ban.

a) Grounds for removal

Grounds for removal:
An ad interim appointment can be terminated for two causes specified in the Constitution: 1) The disapproval of his ad interim appointment by the Commission on Appointments. 2) The adjournment of Congress without the Commission on Appointments acting on his appointment. (Matibag v. Benipayo, supra.)

Resolutory conditions. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. (Ibid.)

b) Appointment or designation in a temporary or acting capacity

Revocable at the pleasure of the appointing power. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. (Ibid.)

Brillantes v. Yorac (1990)
President Corazon Aquino appointed [respondent] Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the President of the Philippines to make the challenged designation in view of the status of the Commission on Elections as an independent constitutional body and the specific provision of Article IX-C, Section 1(2) of the Constitution that “(I)n no case shall any Member (of the Commission on Elections) be appointed or designated in a temporary or acting capacity.”
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal.

d. Power of removal

Doctrine of implication. Under the doctrine of implication, the power to appoint carries with it the power to remove. (Gonalez III v. Office of the President, En Banc, G.R. No. 196231, 04 September 2012)

General Rule: All officers appointed by the President are also removable by him. (Gonalez III v. Office of the President, 2012)
Exception/s: The exception to this is when the law expressly provides otherwise – that is, when the power to remove is expressly vested in an office or authority other than the appointing power.
In some cases, the Constitution expressly separates the power to remove from the President’s power to appoint:
1) Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of lower courts shall be appointed by the President.
2) Members of the Supreme Court may be removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges of lower courts may be removed only by the Supreme Court by virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII).
3) The Chairpersons and Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall likewise be appointed by the President, but they may be removed only by impeachment (Section 2, Article XI).
4) The Ombudsman himself shall be appointed by the President (Section 9, Article XI) but may also be removed only by impeachment (Section 2, Article XI). (Ibid.)
Gonalez III v. Office of the President (2012)
Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political influences and the discretionary acts of the executive, Congress laid down two restrictions on the President’s exercise of such power of removal over a Deputy Ombudsman, namely:
1) That the removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the Ombudsman; and
2) That there must be observance of due process.
Reiterating the grounds for impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same grounds that the Ombudsman may be removed through impeachment, namely, “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor for that matter, would diminish or compromise the constitutional independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the independence of the Ombudsman’s Deputies and Special Prosecutor in the discharge of their duties that their removal can only be had on grounds provided by law.

Related

System-based bar exam review mentoring program to improve your bar exam preparation

© 2022 BARMENTOR.PH. All Rights Reserved.

error: Content is protected.