‘Midnight appointees’ a potential headache

Conclusion

Former Senior Government Officials (FSGO) member and columnist Lito Banayo and former Civil Service Commission Chairman Karina Constantino David said that former President and Rep. Gloria Arroyo of Pampanga made numerous midnight appointments that could potentially present problems to President Benigno Aquino 3rd.

Among those who were appointed by Arroyo on March 9 are Peter Favila, former Trade secretary who was appointed to the Monetary Board; Patricia Sto. Tomas, former Labor secretary who was appointed to the Development Bank of the Philippines (DBP) board; and Prospero Pichay Jr., former representative of Surigao del Sur and presidential adviser on political affairs who was appointed to a five-year term as a trustee of the Local Water Utilities Administration.

Appointed to the board of the Philippine National Oil Co.- Exploration Corp. (PNOC-EC) on March 1 were Minita Chico Nazario, former Supreme Court associate justice, and Tirso Danga, former Intelligence Service of Armed Forces of the Philippines (ISAFP) chief.

Chico Nazario was a Sandiganbayan justice who initially presided over the special court that tried former President Joseph Estrada of plunder after his ouster in 2001. She then served as Supreme Court associate justice from February 2004 to December 2009.

Danga, on the other hand, was head of ISAFP when the agency allegedly tapped the phone conversation of former President Gloria Arroyo and former Commission on Elections commissioner Virgilio Garcillano during the 2004 elections, which bolstered allegations of cheating against Arroyo.

‘Critical’ agencies

The positions are not Cabinet level, but Banayo said, “These government corporations, many of which have fixed terms of office, are very critical agencies because they control most of the funds of government.”

He added that some positions are paid “probably five times higher” than a Cabinet secretary.

“I would suspect that if you track the period of one week before the [March 10] deadline up to the day of the deadline that there would be a sharp jump in the number of appointments,” David said.

She, however, qualified that the list they got is only partial and still needs to be reviewed. Asked whether those appointed a day or days before the ban should be considered midnight appointees, she said, “An appointment, let’s say, signed on March 9, transmitted on April 9 and umupo [assumed office] on April 10, is that midnight? To my mind it is, because dapat natapos yung proseso [the process should have been over] before the ban.”

Abuse of ‘desire’ letter

The list of midnight appointees also includes people who were marked as “elected by the board from among themselves” or “elected by stockholders,” with some of them even assuming office after the May 10 election.

“Ang problema kasi sa Malacañang, kaya kino-consider yung parang midnight appointees [The problem with Malacañang, which is why they are also considered as midnight appointees] is that the [former] President [Arroyo] has abused the so-called desire letter,” David said.

A desire letter is a correspondence from the Office of the President, usually signed by the Executive Secretary, addressed to the board of a state corporation, which conveys the president’s preference for certain positions.

“If you’re a member of the board in an acting capacity, obviously you will follow. Or if you are a member of the board and your term is ending next year and you want to go on, when you receive a desire letter, it’s an order, then you will follow,” David said.

She added that Arroyo had “subverted the entire appointment process” throughout her nine years in office by appointing several people into “acting” positions in the Cabinet and other government agencies and corporations.

“You appoint a person to a term because you expect that person to exercise his or her independent judgment. That’s why you have a term. You no longer serve at the pleasure of anyone other than your principles,” the former Civil Service Commission chairman said.

“Then a midnight appointment on March 9, 2010 grants them now the full three, five- or six-year term. And if you go by the names of the people here, you will notice that most of them seem to be rewards for good deeds done for her,” Banayo said. “But the reward for loyalty to me is secondary to the ill-disguised plan to sabotage the new administration.”

Covering her tracks

Banayo added that it was possible that Arroyo insisted on appointing people close to her in key positions before the constitutional ban as part of an attempt to cover up her tracks.

“Baka merong mga paper trail [there might be some paper trail] that leads somewhere to financing by DBP of certain anomalous deals or PhilHealth, for instance. Remember the allegations in 2004? So pwede sigurong may magawa yung mga officials na ito para maitago yun [these officials might be able to do something to cover that up],” he said.

Banayo added, however, the Aquino government needs to go through the names carefully and thoroughly “to find out if there are some kinds of paper trail within these corporations that may affect the criminal prosecution of GMA [Gloria Macapagal Arroyo] for corruption or plunder.”

He added that it is ironic that while Arroyo’s father, former President Diosdado Macapagal, won the case against his predecessor Carlos Garcia, who had also appointed several midnight appointees, Arroyo has left a long list of anomalous appointments.

“At that time there was no constitutional ban, but invoking propriety, the Supreme Court ruled that it was highly improper for Garcia to still appoint at a certain period towards the end of his term,” Banayo said.

Clueless appointees

Some people whose names are on the list apparently had no inkling of their appointment. Banayo cited the cases of Federico Pascual, former Government Service Insurance System (GSIS) president who was appointed to the PNOC board on March 5, and Jose Leviste Jr., who was appointed to the PNOC-EC board on March 1.

Pascual “claims he never knew and he did not accept” any appointment from Malacañang and that at the time Leviste was “allegedly appointed,” he was abroad and has never been sworn into office, according to Banayo, who said he personally knows the two.

An appointment to a government position starts with a vacancy and ends with the swearing in of the appointed person. Not completing the process invalidates an appointment.

Appeal to ‘delicadeza’

On June 11, the FSGO, together with the Management Association of the Philippines, Makati Business Club and the US Pinoys for Good Governance, took out a newspaper ad appealing to all midnight appointees to resign or not accept the “very questionable appointments that would pressure the new administration to uproot them.”

David said the statement was meant to be an open letter to the midnight appointees instead of to Arroyo “because we still believe that many of these people have delicadeza.”

“We’re not in this to get back at people or whatever,” she added. “What we wanted to raise is that an illegitimate president, which is how we view this particular president [Arroyo], who exceeded even the prerogatives of her illegitimacy and used the powers of the presidency in order to extend appointments to her friends and people who can defend her or people she owes, has done the country a disservice.”

David, who has been vocal against Arroyo’s policies, supported President Aquino’s candidacy in the recent elections and is part of a team that vetted candidates to his Cabinet.

Of the names on the list, only Anita Carpon, Arroyo’s manicurist, who was supposed to have been appointed to the board of trustees of the Home Development Mutual Fund or Pag-IBIG, was noted to have “declined” her appointment, while Gordon Alan Joseph and Renato Osmeña, both appointed as “acting” board members of the Mactan Cebu International Airport Authority, were marked “resigned.”

David said some FSGO members are persuading a number of those on the list who are their friends to reject the appointment.

“We’re not blaming them. [But] we’re asking them to be better people than GMA, and we believe that there are many good Filipinos who will be able to see that even if their only motivation was to serve, it will be wrong to serve under illegal circumstances,” she added.

Banayo said he has talked to employees and middle-level officials of two government corporations who were “so scandalized at the levels of incompetence and corruption that they have suffered under those who were reappointed and given fixed terms” that they were willing to force their bosses out of office.

“They said that if Noynoy tells them to yank these people bodily out of office, they will do it,” he said.

“We don’t also want that to happen, but when you create a situation which is quite politically explosive, if push comes to shove, some of these people just might do it even without the President [Aquino] asking them. Sa galit na lang eh ‘no [They might just do it out of anger],” Banayo added.

He said the employees also fear that when they retire, they cannot be paid their retirement gratuities because “ubos na ubos na yung pera [the money is all gone].”

Midnight appointments

Banayo and David said the incoming Aquino administration would be able to review all midnight appointments once they look into Malacañang records, which are marked with barcodes.

“Posible silang makalusot ng isa o dalawa [They may be able to get away with one or two appointments], but anybody who goes through that entire process, looking for what they did wrong, will find it,” David said.

She also said that a review of the appointees should determine whether those reappointed have really ended their terms. “I doubt that their terms have ended,” she said.

Banayo said there was initially a debate on whether President Aquino should release an executive order (EO) declaring all midnight appointments null and void or deal with the appointments on a case-to-case basis.

“I understand they are already going through this list one by one and are coming up with executive orders particular to these agencies or these GOCCs. So it’s going to take a little time,” he said.

Banayo added that the purported move to come up with separate EOs seems to be more effective because if a sweeping EO is challenged, “it goes all the way to the Supreme Court and if it’s technically flawed for one reason or another, then these guys will remain in office—all of them.”

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