Margie has been in the judiciary for a long time, starting from the lowest court. Twenty (20) years from her first year in the judiciary, she was nominated as a Justice in the Court of Appeals. Margie also happens to be a first-degree cousin of the President. The Judicial and Bar Council included her in the short-list submitted to the President whose term of office was about to end – it was a month before the next presidential elections. Can the President still make appointments to the judiciary during the so-called midnight appointment ban period? Assuming that he can still make appointments, could he appoint Margie, his cousin? (4%)
Suggested answer only. Not an official answer and not legal advice.
No, the President cannot appoint Margie to the Court of Appeals during the midnight appointment ban, but assuming he can, he may appoint his cousin. Under De Castro v. JBC, the exception to the midnight appointment ban in Section
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Quick check
Under De Castro v. JBC, to which judicial court does the exception to the midnight appointment ban in Section 15, Article VII exclusively apply?
The Supreme Court in De Castro v. JBC held that the exception to the midnight appointment ban applies exclusively to Supreme Court vacancies.
Does the prohibition on midnight appointments under Section 15, Article VII apply to appointments made to the Court of Appeals?
The Court of Appeals is a lower court, and appointments to lower courts remain subject to the midnight appointment ban.
To which branch of government does the constitutional prohibition against nepotism under Section 13, Article VII specifically apply?
The constitutional prohibition on nepotism under Section 13, Article VII applies exclusively to appointments within the Executive Department.
What is the legal status of an appointment made by an outgoing President to the Court of Appeals during the two-month period before presidential elections?
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Can the President appoint a first-degree cousin to the Judiciary assuming no other constitutional ban applies?
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Learn more about these topics
1. Midnight Appointment Ban
Under Section 15, Article VII of the 1987 Philippine Constitution, the President is prohibited from making appointments two months immediately before the next presidential elections and up to the end of their term. In De Castro v. JBC, the Supreme Court held that the constitutional mandate to fill Supreme Court vacancies within ninety days under Section 4(1), Article VIII creates an exception to this ban. However, this exception applies exclusively to appointments to the Supreme Court and does not extend to vacancies in lower courts such as the Court of Appeals.
2. Lower Court Appointments
The exception recognized in De Castro v. JBC allowing appointments during the midnight appointment ban is strictly confined to the Supreme Court. Vacancies occurring in the Court of Appeals, Sandiganbayan, Court of Tax Appeals, and trial courts remain fully covered by the general prohibition under Section 15, Article VII. Consequently, any judicial appointment made by an outgoing President to a lower appellate court or trial court during the two-month period prior to a presidential election is unconstitutional, void, and ineffective.
3. Nepotism Scope Limits
Section 13, Article VII of the 1987 Constitution prohibits the President from appointing relatives within the fourth civil degree of consanguinity or affinity. However, established jurisprudence dictates that this constitutional prohibition against nepotism applies exclusively to presidential appointments within the Executive Department. It does not extend to appointments in the Judiciary or Constitutional Commissions, which follow separate constitutional mechanisms. Therefore, appointing a first-degree cousin to a judicial post does not violate the constitutional rule against executive nepotism.