Question B.18, 2019 Political Law Bar Exam

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

B.18.

(Question B.18, Political Law, 2019 Bar Exam)

A was appointed by the President as a Commissioner of the Commission on Election (COMELEC) while Congress was not in session. Pending confirmation of his appointment by the Commission on Appointments, A started to perform his official functions in the COMELEC, such as attending en banc sessions, hearing election protests, signing Resolutions, issuing Orders, and appearing before Congress during budget hearings.

Atty. B questioned before the Supreme Court the exercise of official functions by A, stating that his ad interim appointment is not a permanent appointment but a temporary one pending confirmation by the Commission on Appointments, and thus, prohibited under Article IX-C of the 1987 Constitution which states that “[i]n no case shall any Member [of the COMELEC] be appointed or designated in a temporary or acting capacity.”

(a) Is Atty. B’s contention correct? Explain. (2.5%)

(b) If the Commission on Appointments by-passed the confirmation of A, can he still be reappointed by the President? Explain. (2.5%)

Suggested Answer:

No. Answer

Under jurisprudence, an ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office.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. Rule

In the case at bar, the ad interim appointment on A is permanent and effective immediately. Accordingly, he may exercise the duties and functions of his position. Apply

Thus, Atty. B’s contention is not correct. Conclusion

(b) Yes. Answer

Under jurisprudence, the President is free to renew the ad interim appointment of a by-passed appointee whose appointment has not been acted upon by the Commission on Appointment. Rule

In the case at bar, if the Commission on Appointments by-passes the confirmation of A, then no action has been made on his appointment. Accordingly, there is no prohibition on his being reappointed again by the President. Apply

Thus, the President may still reappoint A. Conclusion

..

(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)

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Subjects

Political Law, Labor Law

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