In the Philippine legal system, the power of appointment is a quintessential executive function. Primarily vested in the President under Article VII, Section 16 of the 1987 Constitution, it is the authority to select and designate an individual to occupy a public office and to exercise the functions and duties appurtenant thereto.
This power is not absolute; it is a structured authority designed to maintain the balance of power among the branches of government while ensuring the efficient operation of the bureaucracy.
I. Constitutional Basis and Classification of Appointees
The Constitution divides the officials the President can appoint into four distinct groups:
- Group 1: Heads of Executive Departments, Ambassadors, and Other Public Ministers. This includes consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution.
- Group 2: All other officers of the Government whose appointments are not otherwise provided for by law.
- Group 3: Those whom the President may be authorized by law to appoint.
- Group 4: Other officers lower in rank whose appointments the Congress may, by law, vest in the President alone.
The Requirement of Confirmation
A critical distinction in Philippine law is which appointments require the consent of the Commission on Appointments (CA). Only the first group of appointees—heads of departments, ambassadors, and high-ranking military officers—require CA confirmation. Appointments to the Judiciary and the Office of the Ombudsman, while made by the President, follow a different process involving the Judicial and Bar Council (JBC).
II. Types of Appointments
The nature and timing of an appointment dictate its legal requirements and duration:
1. Regular Appointments
These are made while Congress is in session. A regular appointment is a "nomination" by the President, which must be confirmed by the CA before the appointee can take office.
2. Ad Interim Appointments
These are made during the recess of Congress. Unlike a regular appointment, an ad interim appointment is immediately effective. The appointee can take the oath and perform duties right away. However, these appointments are "permanent" in nature but subject to a resolutory condition: they cease to be valid if disapproved by the CA or upon the next adjournment of Congress.
3. Acting Appointments
These are essentially temporary and are used to prevent a hiatus in government service. An acting appointment does not require CA confirmation and can be revoked by the President at any time.
III. Constitutional Limitations
The 1987 Constitution imposes strict "checks" to prevent the abuse of the appointive power:
- The "Midnight Appointments" Ban (Art. VII, Sec. 15): Two months immediately before the next presidential elections and up to the end of their term, a President is prohibited from making appointments. The only exception is for temporary appointments in the executive department when continued vacancies will prejudice public service or endanger public safety.
- The "Nepotism" Rule (Art. VII, Sec. 13): The President is prohibited from appointing their spouse and relatives by consanguinity or affinity within the fourth civil degree to various high-ranking positions, including heads of departments and Constitutional Commissions.
- The One-Year Prohibition for Losing Candidates: No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any government-owned or controlled corporations.
IV. The Role of the Judicial and Bar Council (JBC)
For the Judiciary (Supreme Court and lower courts) and the Office of the Ombudsman, the President's power is restricted by the JBC. The President can only appoint individuals from a list of at least three nominees prepared by the JBC for every vacancy. These appointments do not require confirmation by the Commission on Appointments, as the JBC process serves as the primary vetting mechanism.
V. Discretionary Nature and Judicial Review
The Supreme Court has consistently ruled that the power of appointment is essentially discretionary. The President has the liberty to choose whom they believe is best suited for a position, provided the appointee meets the minimum legal qualifications.
However, this discretion is not beyond the reach of the courts. Under the Expanded Power of Judicial Review, the courts may intervene if there is a showing of "grave abuse of discretion amounting to lack or excess of jurisdiction"—such as if an appointment violates a specific constitutional prohibition (like the Midnight Appointments ban) or if the appointee lacks the mandatory qualifications set by law.
Summary of the Process
| Type of Appointment | When Made | Effectivity | CA Confirmation? |
|---|---|---|---|
| Regular | Congress in Session | After CA Confirmation | Mandatory for Group 1 |
| Ad Interim | Congress in Recess | Immediate | Subject to CA Approval |
| Acting | Any time | Immediate | Not Required |