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. (Art. VII, 1987 Constitution)
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What are Midnight Appointments?
Midnight appointments refer to those appointments made within two months immediately prior to the next presidential election. Midnight appointments are prohibited under Article VII, Section 15 of the Constitution. (Provincial Government of Aurora vs. Marco, G.R. No. 202331, April 22, 2015)
What is the exception to the rule?
The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety.
Why are midnight appointments prohibited?
Midnight appointments are prohibited because an outgoing President is "duty bound to prepare for the orderly transfer of authority to the incoming President, and he [or she] should not do acts which he [or she] ought to know, would embarrass or obstruct the policies of his [or her] successor." An outgoing President should not "deprive the new administration of an opportunity to make the corresponding appointments. (Provincial Government of Aurora vs. Marco)
Does the ban on midnight appointments apply to appointments made by local chief executives?
No. The prohibition on midnight appointments only applies to presidential appointments. It does not apply to appointments made by local chief executives.
Nonetheless, the Civil Service Commission, as the central personnel agency of the Government, may "establish rules and regulations to promote efficiency and professionalism in the civil service." Although it conceded that no law prohibits local elective officials from making appointments during the last days of their tenure, this court in Nazareno upheld Civil Service Commission Resolution No. 010988, which prohibited local elective officials from making appointments immediately before and after elections. In addition, Resolution No. 010988 prohibited "mass appointments," or those "issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for their immediate issuance."
This court said that the rationale behind Resolution No. 010988 " is not difficult to see":
Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor in the appointment process, and to prevent incumbents from gaining any undue advantage during the elections. To this end, appointments within a certain period of time are proscribed by the Omnibus Election Code and related issuances. After the elections, appointments by defeated candidates are prohibited, except under the circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and incoming officials, to allow the incoming administration a free hand in implementing its policies, and to ensure that appointments and promotions are not used as a tool for political patronage or as a reward for services rendered to the outgoing local officials.
In Nazareno, this court affirmed the disapproval of 89 appointments Mayor Felipe Antonio B. Remollo of Dumaguete City made within the month that he left office. This court found that the appointments were issued in violation of Resolution No. 010988.
However, Resolution No. 010988 — the Resolution effective when Mayor Remollo issued the appointments in Nazareno — was superseded by Resolution No. 030918 dated August 28, 2003.
Since Resolution No. 030918 was effective at the time Governor Ong issued the 26 appointments, we must decide this case based on Resolution No. 030918. Nazareno is not applicable, as it was decided based on Resolution No. 0109888.
We agree with the Civil Service Commission and the Court of Appeals that Governor Ong issued Marco’s appointment in accordance with Resolution No. 030918. Although his appointment was made five (5) days before the end of Governor Ong's term, Marco was fully qualified for the position and had undergone regular screening processes before the election ban. As the Civil Service Commission found, Marco "applied for the [position of Cooperative Development Specialist II] [and] passed the screening conducted by the Personnel Selection Board (PSB) on February 12 & 13, 2004." The Court of Appeals reiterated this finding in its Decision dated March 2, 2012. Absent a showing of grave abuse of discretion, this court will not disturb the findings of fact of the Civil Service Commission, especially since it has acquired "specialized knowledge and expertise" in the field of civil service law.
Assuming without conceding that Governor Ong's 26 appointments were issued in bulk, this per se does not invalidate the appointments. Unlike Resolution No. 010988, Resolution No. 030918 does not prohibit appointments that are large in number. Moreover, 26 appointments can hardly be classified as "mass appointments," compared with the 89 appointments this court invalidated in Nazareno.
Marco's appointment was valid. The Civil Service Commission correctly approved his appointment. (Provincial Government of Aurora vs. Marco citing De Rama v. Court of Appeals, G.R. No. 131136. February 28, 2001 and Nazareno, et al. v. City of Dumaguete, G.R. No. 177795, June 19, 2009)
Midnight appointments are prohibited because an outgoing President is "duty bound to prepare for the orderly transfer of authority to the incoming President, and he [or she] should not do acts which he [or she] ought to know, would embarrass or obstruct the policies of his [or her] successor." An outgoing President should not "deprive the new administration of an opportunity to make the corresponding appointments. (Provincial Government of Aurora vs. Marco)
Does the prohibition on midnight appointments under Sec. 15, Article VII of the Constitution apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary?
No. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President's or Acting President's term does not refer to the Members of the Supreme Court.
On the other hand, Section 4 (1), Article VIII (Judicial Department), states:
Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced, should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language. Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII.
[The ruling in the earlier case of In Re Appointment of Mateo Valenzuela, A.M. No. 98-5-01-SC, November 9, 1998 which extended the prohibition for midnight appointments to the judiciary was reversed.] (De Castro v. JBC, G.R. No. 191002, March 17, 2010)
On the other hand, Section 4 (1), Article VIII (Judicial Department), states:
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.The exchanges during deliberations of the Constitutional Commission show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President.
Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced, should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language. Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII.
[The ruling in the earlier case of In Re Appointment of Mateo Valenzuela, A.M. No. 98-5-01-SC, November 9, 1998 which extended the prohibition for midnight appointments to the judiciary was reversed.] (De Castro v. JBC, G.R. No. 191002, March 17, 2010)
Does the ban on midnight appointments apply to appointments made by local chief executives?
No. The prohibition on midnight appointments only applies to presidential appointments. It does not apply to appointments made by local chief executives.
Nonetheless, the Civil Service Commission, as the central personnel agency of the Government, may "establish rules and regulations to promote efficiency and professionalism in the civil service." Although it conceded that no law prohibits local elective officials from making appointments during the last days of their tenure, this court in Nazareno upheld Civil Service Commission Resolution No. 010988, which prohibited local elective officials from making appointments immediately before and after elections. In addition, Resolution No. 010988 prohibited "mass appointments," or those "issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for their immediate issuance."
This court said that the rationale behind Resolution No. 010988 " is not difficult to see":
Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor in the appointment process, and to prevent incumbents from gaining any undue advantage during the elections. To this end, appointments within a certain period of time are proscribed by the Omnibus Election Code and related issuances. After the elections, appointments by defeated candidates are prohibited, except under the circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and incoming officials, to allow the incoming administration a free hand in implementing its policies, and to ensure that appointments and promotions are not used as a tool for political patronage or as a reward for services rendered to the outgoing local officials.
In Nazareno, this court affirmed the disapproval of 89 appointments Mayor Felipe Antonio B. Remollo of Dumaguete City made within the month that he left office. This court found that the appointments were issued in violation of Resolution No. 010988.
However, Resolution No. 010988 — the Resolution effective when Mayor Remollo issued the appointments in Nazareno — was superseded by Resolution No. 030918 dated August 28, 2003.
Since Resolution No. 030918 was effective at the time Governor Ong issued the 26 appointments, we must decide this case based on Resolution No. 030918. Nazareno is not applicable, as it was decided based on Resolution No. 0109888.
We agree with the Civil Service Commission and the Court of Appeals that Governor Ong issued Marco’s appointment in accordance with Resolution No. 030918. Although his appointment was made five (5) days before the end of Governor Ong's term, Marco was fully qualified for the position and had undergone regular screening processes before the election ban. As the Civil Service Commission found, Marco "applied for the [position of Cooperative Development Specialist II] [and] passed the screening conducted by the Personnel Selection Board (PSB) on February 12 & 13, 2004." The Court of Appeals reiterated this finding in its Decision dated March 2, 2012. Absent a showing of grave abuse of discretion, this court will not disturb the findings of fact of the Civil Service Commission, especially since it has acquired "specialized knowledge and expertise" in the field of civil service law.
Assuming without conceding that Governor Ong's 26 appointments were issued in bulk, this per se does not invalidate the appointments. Unlike Resolution No. 010988, Resolution No. 030918 does not prohibit appointments that are large in number. Moreover, 26 appointments can hardly be classified as "mass appointments," compared with the 89 appointments this court invalidated in Nazareno.
Marco's appointment was valid. The Civil Service Commission correctly approved his appointment. (Provincial Government of Aurora vs. Marco citing De Rama v. Court of Appeals, G.R. No. 131136. February 28, 2001 and Nazareno, et al. v. City of Dumaguete, G.R. No. 177795, June 19, 2009)
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