Preempting the President's successor

The appointment to a government post is a process that takes several steps to complete. Any valid appointment, including one made under the exception provided in Section 15, Article VII of the 1987 Constitution, must consist of the President signing an appointee’s appointment paper to a vacant office, the official transmittal of the appointment paper (preferably through the MRO), receipt of the appointment paper by the appointee, and acceptance of the appointment by the appointee evidenced by his or her oath of office or his or her assumption to office.Aytona v. Castillo (Aytona)[1] is the basis for Section 15, Article VII of the 1987 Constitution. Aytona defined “midnight or last minute” appointments for Philippine jurisprudence. President Carlos P. Garcia submitted on 29 December 1961, his last day in office, 350 appointments, including that of Dominador R. Aytona for Central Bank Governor. President Diosdado P. Macapagal assumed office on 30 December 1961, and issued on 31 December 1961 Administrative Order No. 2 recalling, withdrawing, and cancelling all appointments made by President Garcia after 13 December 1961 (President Macapagal’s proclamation date). President Macapagal appointed Andres V. Castillo as Central Bank Governor on 1 January 1962. The Supreme Court dismissed Aytona’s quo warranto proceeding against Castillo, and upheld Administrative Order No. 2’s cancellation of the “midnight or last minute” appointments. The High Court provided:
x x x But the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, 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 to deprive the new administration of an opportunity to make the corresponding appointments.

x x x Now it is hard to believe that in signing 350 appointments in one night, President Garcia exercised such “double care” which was required and expected of him; and therefore, there seems to be force to the contention that these appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this Court resolves that it must decline to disregard the Presidential Administrative Order No. 2, cancelling such “midnight” or “last-minute” appointments.

Of course the Court is aware of many precedents to the effect that once an appointment has been issued, it cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad interim appointments (three hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a setting similar to that outlined herein. On the other hand, the authorities admit of exceptional circumstances justifying revocation and if any circumstances justify revocation, those described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointee has qualified is the latter’s equitable rights. Yet it is doubtful if such equity might be successfully set up in the present situation, considering the rush conditional appointments, hurried maneuvers and other happenings detracting from that degree of good faith, morality and propriety which form the basic foundation of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant consequences to the dignity and efficiency of the public service. Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.[2]

During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now retired Supreme Court Chief Justice) Hilario G. Davide, Jr. referred to the Supreme Court’s ruling in Aytona and stated that his proposal seeks to prevent a President, whose term is about to end, from preempting his successor by appointing his own people to sensitive positions.

MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he may prolong his rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the judiciary, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor to make appointments to these positions. We should realize that the term of the President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made about the end of his term to these sensitive positions.[3]
The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytona’s intangible “stratagem to beat the deadline,” and also on the act of “preempting the President’s successor,” which shows a lack of “good faith, morality and propriety.” Subject to only one exception, appointments made during this period are thus automatically prohibited under the Constitution, regardless of the appointee’s qualifications or even of the President’s motives. The period for prohibited appointments covers two months before the elections until the end of the President’s term. The Constitution, with a specific exception, ended the President’s power to appoint “two months immediately before the next presidential elections.” For an appointment to be valid, it must be made outside of the prohibited period or, failing that, fall under the specified exception.

[1] No. L-19313, 19 January 1962.
[2] No. L-19313, 19 January 1962 at 10-11.
[3] (accessed 15 June 2015).