ALCAIDE, JERK ENRIC C.

1M
LEGAL TECHNIQUE AND LOGIC

WHEN IS THE APPOINTMENT MADE BY THE PRESIDENT OF THE PHILIPPINES

COMPLETE?

The power of appointment is vested in the President by the Constitution.

Section 16, Article VII of the 1987 Constitution states:

“Section 16. The President shall nominate and, with 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 to 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 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 this provision, there are two kinds of presidential appointments: (1) appointments
made during the session of Congress or the so-called regular appointments or nominations, and
(2) appointments made during the recess of Congress which are also known as ad interim
appointments.

The regular appointments which are contemplated under the first paragraph of Article
VII, Section 16 of the 1987 Constitution go through the following stages: (1) nomination, (2)
consent, (3) appointment, and (4) acceptance by the nominee. What the President sends to the
Commission is just a nomination. After the Commission has given its consent, the President
issues the appointment. It is only when the last stage has been completed may the officer
concerned take his oath of office.

The second paragraph of Article VII, Section 16, of the 1987 Constitution also empowers
the President to issue appointments while Congress is not in session. Such appointments are
called ad interim appointments, and it goes through the following stages: (1) appointment, and
(2) confirmation. Ad interim appointment is permanent in nature and takes effect immediately.
Thus, one who was issued an ad interim appointment may immediately enter upon the discharge
of his 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.
 Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III
v. Mison, and in subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional
Commission, and Calderon v. Carale, under Section 16, Article VII, of the Constitution, there are
four (4) groups of officers of the government to be appointed by the President.

First, 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;

Second, all other officers of the Government whose appointments are not otherwise
provided for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone.

It is well-settled that only presidential appointees belonging to the first group require the
confirmation by the Commission on Appointments (Manalo v. Sistoza, 312 SCRA 239, Aug.
11, 1999, En Banc [Purisima])

Appointment is different from designation. 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, as where, in the case of Binamira v. Garucho, GR No. 92008,
July 30, 1990, the Secretary of Tourism is designated Chairman of the Philippine Tourism
Authority, or where, under the Constitution, three Justices of the Supreme Court are designated
by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives.
It is said that the appointment is essentially executive while designation is legislative in nature.

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 office, 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. (Flores v. Drilon, GR No. 104732, June 22,
1993)
 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. Thus, the ad interim appointment
remains effective until such disapproval or next adjournment, signifying that it can no longer be
withdrawn or revoked by the President.

More than half a century ago, the Court had already ruled that an ad interim appointment
is permanent in character. In Summers v. Ozaeta, decided on October 25, 1948, the Court held
that: “an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article
VII of the Constitution, which provides that the ‘President shall have the power to make
appointments during the recess of the Congress, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress.’ It is an appointment permanent in nature, and the circumstance that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other than that its provisional period
has expired. Said appointment is of course distinguishable from an ‘acting’ appointment which is
merely temporary, good until another permanent appointment is issued.”

In Lacson v. Romero, 84 Phil 740, the Supreme Court declared that an appointment is
deemed complete only upon its acceptance. Pending such acceptance, which is optional to the
appointee, the appointment may still be validly withdrawn. Appointment to a public office
cannot be forced upon any citizen except for purposes of defence of the State under Section 4,
Article II, as an exception to the rule against involuntary servitude.

The appointing power of the President is not an absolute power as it has its limitation as
well. Section 15, Article VII of the 1987 Constitution provides: “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.”

It appears that Section 15, Article VII is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a Presidential election and are similar
to those which are declared election offenses in the Omnibus Election Code.

The second type of appointments prohibited by Section 15, Article VII consists of the so-
called "midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in
his bid for reelection, became no more than a "caretaker" administrator whose duty was to
"prepare for the orderly transfer of authority to the incoming President." (In re Appointments
dated March 30, 1998 of Hon. Valenzuela and Hon. Vallarta, A.M. No. 98-5-01-SC.
November 9, 1998.)