Who President Duterte can or cannot appoint has become relevant in view of the move of the President to reset this year’s synchronized barangay and Sangguniang Kabataan elections scheduled on the fourth Monday of October 2017. The President said he does not want those financed by drug lords to win and that, if the barangay elections would proceed as scheduled, the winner might be financed by drug money. The President’s plan is to declare all village positions vacant, because “narcopolitics” has “entered into the mainstream of Philippine politics” and “40 percent of the total barangay captains are into drugs”.
The President’s legal/political advisers should remind the President that he cannot appoint barangay officials because neither the Constitution nor the law allows him to. Thus, under Section 16, Article VII of the 1987 Constitution, there are four (groups) of officers whom the President shall appoint. These are the following:
- 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).
- Second, all other officers of the government whose appointments are not otherwise provided by law;
- Third, those whom the President may be authorized by law to appoint; and
- Fourth, officers lower in rank whose appointments Congress may by law vest in the President alone.
Only appointments in the first group require the consent of the COA. The second, third and fourth groups do not require such consent.
While the appointing power is basically an executive prerogative, the Constitution contains provisions restricting or limiting such appointing power. Apart from the power of review of the COA over appointments requiring the latter’s confirmation, the other limitations on the President’s appointing power are the following:
- The limitations provided in Article VII of the Constitution in Section 14 (appointments by an Acting President) and Section 15 (Midnight Appointments), which read:
“Section 14. Appointments extended by an acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or re-assumption of office.
“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 vacancy therein will prejudice public service or endanger public safety.”
- The President can only appoint members of the Supreme Court and judges of lower courts from among the list of at least three members for each position prepared and recommended by the Judicial and Bar Council (Section 9, Article VII, Constitution).
- The President cannot 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 (Section 5(6) Article VIII, Constitution). Neither can he appoint officials and employees of the Civil Service Commission, Commission on Elections and Commission on Audit, as the power to appoint them belongs to these respective commissions in accordance with the civil service law (Section 4, Article IX-A, Constitution).
- The President cannot appoint any person who lost in any election within one year after such election to any office in the government or any government-owned or -controlled corporations or in any of their subsidiaries (Section 6, Article IX(B), Constitution).
- The President can only appoint the Ombudsman and deputies persons from among the list of at least six nominees prepared and recommended by the Judicial and Bar Council (Section 9, Article XI, Constitution).
- The officials and employees of the Office of the Ombudsman, other than the deputies, shall be appointed by the Ombudsman according to the civil service law, and not by the President (Section 6, Article XI, Constitution).
- The Commission on Human Rights shall appoint its officers and employees in accordance with law, precluding the President from doing so (Section 17 (10), Article XIII, Constitution).
- Congress may, by law, vest the appointment of lower in rank in the courts, or in the heads of departments, agencies, commissions or boards (Section 16, Article VII, Constitution).
- Another constitutional limitation on the President’s appointing power is Section 7 of Article IX-B of the Constitution.
An elective official may be appointed by the President to another position, but he has to vacate his elective post. He cannot be appointed to another position and, at the same time, maintain his elective position. On the other hand, an appointive official may be appointed or designated by the President to another appointive position, thus occupying two or more appointive positions, if a specific law so allows or where his primary functions so require in an ex officio capacity (Flores v. Drilon, 223 SCRA 268[1993]).
- Except as may be expressly provided by the Constitution, (i.e., the Vice President may be appointed Cabinet member) Section 13, Article VII of the Constitution prohibits the President from appointing a Cabinet member, any of his deputies or assistants to another position(s). However, such constitutional provision does not prohibit these executive officials from holding additional positions in ex-officio capacities and as required by their primary functions but without additional compensation or per diems in whatever form (De la Cruz v. COA, GR 138489, November 29, 2001).
- Administrative Code of 1987 (Section 31, Executive Order 292) expressly grants the President continuing authority to reorganize the Office of the President in order to achieve simplicity, economy and efficiency.
- The President, during his tenure, cannot appoint his or her spouse and relatives by consanguinity or affinity within the fourth civil degree as:
- a) Members of the Constitutional Commission
- b) Ombudsman
- c) Secretaries or Undersecretaries
- d) Chairman or heads of bureaus of offices, including government-owned or -controlled corporations and their subsidiaries (Section 13, Article VII, Constitution)
As can be clearly seen from all the above enumeration, the appointing power of the President is clear, subject to such restrictions and/or limitations provided by the Constitution or by law. Several House bills and Senate bills have been filed postponing the synchronized barangay and Sangguniang Kabataan elections in October 2017 to the fourth Monday of May 2020, and subsequent synchronized elections is proposed to be held on the second Monday of May 2023 and every three years thereafter. Under these House/Senate bills, it is proposed that “all incumbent barangay officials shall be deemed terminated upon the approval of the bill, and qualified persons will be appointed by the President.”
Election watchdog groups National Movement for Free Elections and Parish Pastoral Council for Responsible Voting oppose the postponement on the ground that “postponing elections undermine a democratic process instituted to ensure every individual’s right to choose their leaders and make them accountable”.
While I concur with the President in his desire for a “drug-free Philippines” and his belief that “the drug problem begins at grassroot level, therefore, that is where we should start the cleansing”, I am not convinced that appointing OICs is the way to go.
Does the President have the wisdom and impartiality to appoint “untainted” OICs for more than 42,036 barangays? Do we even have such number of “untainted” countrymen who genuinely desire to serve their communities and not their personal ambition, desire for power, greed for money? I am still believing that “The Philippines is a democratic and republic State. Sovereignty resides in the people and all government authority emanates from them” (Section 1, Article II, Constitution).
Let the Constitution speak for itself!