SAN

BEDA UNIVERSITY
San Miguel, Manila

Presidential Appointment

A Case Study and Commentary
Presented to the Faculty of College of Law


In Partial Fulfillment of the
Requirements in Legal Technique and Logic for the Course of Juris
Doctor – College of Law (Non-Thesis)


ANDREA G. DE GUZMAN



June 2020
 PRESIDENTIAL APPOINTMENT 1

Power of Appointment by the President

In the case of Appari vs. Court of Appeals, appointment is the selection, by the
authority vested with power, of an individual who is to exercise the functions of a
given office.1 Appointments may be classified into two: a) as to its nature, and 2) as
to the manner in which it is made. As to its nature, appointments can either be
permanent or temporary. A permanent appointee can only be removed from office
for cause, whereas a temporary appointee can be removed even without hearing or
cause. As to the manner in which it is made, an appointment can either be regular or
ad interim. A regular appointment is one made while Congress is in session, while
an ad interim appointment is one issued during the recess of Congress. It is to be
noted that appointments that do not require confirmation from Commission on
Appointments cannot be properly characterized as either a regular or an ad interim.

During a regular appointment, the usual steps in the appointing process are
the nomination, which is made by the President; the confirmation, which is the
prerogative of the Commission on Appointments; and the issuance of the
commission, also done by the President. During this kind of appointment, such shall
be held complete after complying with the said three steps. The confirmation by the
Commission on Appointments is an integral part of the process, to be held such
appointment valid and complete. Included under such rule that there shall be a
confirmation from the Commission on Appointments are the groups mentioned
under Article VII, Section 16. First, (a) the heads of the executive departments; (b)
ambassadors, other public ministers and consuls; (c) officers of the Armed Forces
from the rank of colonel or naval captain; and (d) other officers whose
appointments are vested in him in the Constitution, such as the chairman and
members of the Commission on Elections, Civil Service Commission, the
Commission on Audit. These appointments require the consent of the Commission
on Appointments (COA). However, exceptions to the said rule include all other

1 Appari v. Court of Appeals, G.R. No. L-30057
 PRESIDENTIAL APPOINTMENT 2

officers of the government whose appointments are not otherwise provided by law;
those whom the President may be authorized by law to appoint; and officers lower
in rank whose appointments Congress may by law vest in the President alone; they
do not require such consent. Paragraph 1, Section 16, Article VII provides:

Section 16 of Article VII. 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.2

During Ad Interim appointments, the appointment comes before the
confirmation, which is made by the Commission when it reconvenes following the
legislative recess. The nomination of the regular appointee is made and approved
during the session, when the Commission on Appointments is authorized to meet.
Such appointment is made during the recess and becomes effective then, subject to
confirmation or rejection later, during the next legislative session. Pursuant to
Section 16 (2) of Article VII:

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.

However, just like any other powers that the president has, such have their
limitations and are bound to regulations mainly stated under the 1987 Constitution.
Jurisprudence and limiting provisions state that the power of the President is not

2 Article VII, Section 16, PHILIPPINE CONSTITUTION
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absolute. Aside from the power of review of the Commission on Appointments, over
appointments requiring the latter’s confirmation, the other limitations on the
appointing power of the President are the following:

Section 14. 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.3

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.4

Moreover, under Article VIII, Section 9, judicial appointments are made by
the President based on a list submitted by the Judicial and Bar Council, which is
under the supervision of the Supreme Court.5 Its purpose is to screen forthcoming
appointees to any judicial post. Such appointment is composed of the chief justice as
ex-officio chairman, the Secretary of Justice and representatives of Congress as ex-
officio members, and a representative of the Integrated Bar, a professor of law, a
retired member of the Supreme Court and a representative of the private sector as
members. Neither can the President appoint officials and employees of the Judiciary,
as the power to appoint them belongs to the Supreme Court in accordance with the
civil service law. Accordingly,

Section 9. The Members of the Supreme Court and judges of the lower courts shall be
appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days
from the submission of the list.

3 Article VII, Section 14, PHILIPPINE CONSTITUTION
4 Article VII, Section 15, PHILIPPINE CONSTITUTION
5 Article VIII, Section 9, PHILIPPINE CONSTITUTION
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Completion of the Appointment

The power of the President to appoint shall be deemed complete when the
elements or steps are complied with. In the case of Velicaria-Garafil v. Office of the
President, it does take into account whether the appointment was held outside, just
before, or during the ban. As long as the appointment has complied with the
following elements before the ban: 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 by the appointee who possesses all the qualifications and none of the
disqualifications; the appointment made by the President shall be held valid and
effective until the disapproval by the Commission on Appointments or until the next
adjournment of the Congress.6

In the case of Cabiling vs. Pabulaan, accordingly, the power to appoint in the
President includes the power to make temporary appointments, unless he is
otherwise specifically prohibited by the Constitution or by the law, or where an
acting appointment is repugnant to the nature of the office involved.7 Moreover the
power of the President to issue an acting appointment is particularly authorized by
the Administrative Code of 1987 pursuant to Executive Order No. 292.8

Proposition/Opinion as a Member of the Court

As a member of the Court, pursuant to the cases settled by the honorable
Court, an appointment by the President, whether regular or ad interim shall only be
held valid when the four (4) steps mentioned in the case of Velicaria-Garafil are
fulfilled. It shall be noted that the steps shall be completed provided that there is a
confirmation by the Commission on Appointments in order for a regular

6 Velicaria-Garafil v. Office of the President, G.R. No. 203372
7 Cabiling v. Pabulaan, G.R. No. L-21764
8 Administrative Code of 1987
 PRESIDENTIAL APPOINTMENT 5

appointment be held complete; and such steps shall be completed before the period
of the ban to be held an ad interim appointment complete.

Another reinforcing article, which allows the President to appoint during the
ban, is Article VIII. Accordingly,

Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or
seven Members. Any vacancy shall be filled within ninety days from the occurrence
thereof.9

Section 9. The Members of the Supreme Court and judges of the lower courts shall be
appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days
from the submission of the list.10

The purpose is to avoid unnecessary delays and prejudice towards the
judicial system. Wherein, the primary duty of the judiciary is to uphold the sanctity
of justice. Not being able to fill up vacant positions as to diminish the efficacy of the
system would lead to havoc; not only in the said instance, but also to the whole
branches of the government. This to say, that such appointment especially when
done during the ban, shall be held in accordance with existing circumstances. Such
appointment to fill up vacancy shall be done with double care so as not to prejudice
the next sitting president. As held in the case of Aytona vs. Castillo:

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,

9 Article VIII, Section 4, PHILIPPINE CONSTITUTION
10 Article VIII, Section 9, PHILIPPINE CONSTITUTION
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be regarded by the latter as an abuse of 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.11

As per the above-mentioned cases, however, even when such necessity to fill
up vacancy exists, it shall comply with the essential elements as held in the case of
Velicaria-Garafil, namely: 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
by the appointee who possesses all the qualifications and none of the
disqualifications. Whether it be a regular or an ad interim appointment, such shall
possess of the said elements before an appointment be held complete. 12

The purpose for such compliance avoids conflict regarding the assumption of
the position by the new appointee. Moreover, the acceptance phase by the new
appointee makes sure that a proper transition of the position upon him or her is
valid. Validity is upheld when such acceptance is made. It shall not be treated only as
mere formality but also as mandatory stage. Having been said that our Constitution
provides for the power of the President to appoint, it shall also be noted that such is
limited and regulated by the same. To allow the President to appoint, not taking into
account the necessary process for the appointment to be held complete and valid,
the power to such may lead to abuse or rather the disregard of such power. Abuse in
a way that it may meddle with other branches of the government and to the power
of the upcoming President; and be disregarded, in a way that by neglecting the
essential elements/stages, it will also disregard the sanctity of the appointment
power by the appointee, without such acknowledgment on the appointing consent
of the President.

11 Aytona v. Castillo, G.R. No. L-19313
12 Id.