Midnight appointees in judiciary may be fired, too

MANILA, Philippines – Despite the Palace’s acknowledgement of Chief Justice Corona’s appointment by the previous Arroyo administration, her other last minute appointees to the judiciary may not be as lucky.

“As I said, we will have to examine the appointments to the judiciary. We will examine if the appointments were made during the prohibited period. They can also be questioned,” Chief Presidential Legal Counsel Eduardo de Mesa said.

He said the Aquino administration was prepared for any potential backlash.

“Well, if it’s legal, if it is something that should be done, it has to be done no matter what the backlash is,” he said.

President Aquino’s Executive Order 2 revoked Mrs. Arroyo’s midnight appointments in “departments, agencies, offices and instrumentalities, including GOCCs (government-owned and controlled corporations).” The EO does not cover appointments in the judiciary.

Should there be any a supplemental EO that would extend the revocation to judges and justices, De Mesa said the Vallarta doctrine would be its basis.

In the Vallarta doctrine, midnight appointments to the judiciary were nullified.

“That is based on the decision of the Supreme Court in the case of Valenzuela and Vallarta, re-appointments of Hon. Mateo Valenzuela and Vallarta,” he said.

But he added he could not recall any midnight appointments to the judiciary. “We’ll have to look into that,” he said.

In issuing EO 2, the Aquino administration cited the ban on appointments before and after a presidential election, as stipulated in the Constitution and in the Omnibus Election Code.

Ready for legal battle

Malacañang, meanwhile, said it is ready to defend before the courts its revocation of the midnight appointments of former President now Pampanga Rep. Gloria Macapagal-Arroyo.

“The issue has been long settled by the Supreme Court itself when it prescribed that an appointment is a two-way process. It has to be accepted by the appointee and the appointee must take his oath (of office),” De Mesa said.

“So the SC has, in a very, very old case, already nullified appointments made during the prohibition period or which were not completed before the prohibition period,” he said.

The Arroyo camp said the revocation, contained in EO 2, was unconstitutional because the appointments were made well before the ban took effect last March 10, or 45 days before the May 10 national elections.

Presidential Management Staff chief Julia Abad said her office had listed 977 names of people who were appointed by Mrs. Arroyo “between March and June.” It’s the task of the Office of the Executive Secretary and De Mesa’s to determine whether the names were midnight appointees.

“The list was drawn up by the PMS. Not all of them will have to go,” De Mesa said.

De Mesa said that even though these so-called midnight appointments were made before March 10 or prior to the prohibition, the appointees were only able to assume office on the days when the ban had already taken effect.

Presidential spokesman Edwin Lacierda said the Arroyo camp opted to “literally” interpret the provision banning midnight appointments.

“Our position is to take the spirit behind the provision which is that those appointments were made in violation of the spirit of the Constitution,” Lacierda added.

“As what Secretary De Mesa said, it is a two-way process. You have to have offer and acceptance,” Lacierda said, adding, “It is basic in administrative law, and it has already been settled several times in the Supreme Court.”

But De Mesa reiterated that Arroyo could not possibly be held liable for making the appointments.

“If the question had been raised during her term and it was shown to be a culpable violation of the Constitution, she could have been liable, could have been impeached. But since it’s just an administrative matter and she’s no longer in position I think that has become moot and academic,” De Mesa said.

De Mesa said they were also reviewing the supposed midnight appointments in the Commission on Elections and the judiciary because they could be covered by different jurisprudence.

Recall or improve

While officials have begun reviewing Mrs. Arroyo’s midnight appointments, administration lawmakers have called on President Aquino to recall or improve EO 2 to avoid possible lawsuits and reduce confusion and anger over its implementation.

Northern Samar Rep. Emil Ong and Aurora Rep. Juan Edgardo Angara said there are many kinds of appointments and there are also differing interpretations of what really constitute midnight appointments.

“If possible, they (Malacañang) can take it (EO 2) back although it may be hard because they also said they will handle the matter (firing officials) on a case-to-case basis because there are different kinds of appointees,” Angara told the Serye news forum in Quezon City.

He said employees with civil service eligibility can only be removed for cause.

“Only lawyers would benefit, because I’m sure there will be so many lawsuits,” Angara said in jest.

But he said the President has the power to reorganize the bureaucracy as he sees fit especially if the appointments appear to be illegal.

“At the end of the day, the cases would likely end up in the Supreme Court,” he said.

For his part, Ong said many officials of the previous administration should just resign out of propriety even as he also expressed some reservations about EO 2.

He said there might be some trouble in the portion of EO 2 that stated that those appointed before the March 10 ban but assumed their posts after that day should be removed.

“That point may be considered questionable I would expect some people would question that because under the usual procedure of appointment, you have 60 days to assume or to accept the appointment,” Ong said.

CSC’s concern

Civil Service Commission (CSC) Chairman Francisco Duque said Malacañang might run into legal trouble with its interpretation of the term “midnight appointments.”

“I agree with Palace officials, however, I would like to point out that those who were appointed exactly on March 10 but only received their appointments or papers a few days after, cannot be considered midnight appointees,” Duque said in an interview.

“They should not be regarded as midnight appointees even if they were able to take hold of their appointment papers a few days after,” he said.

“These things can happen given the process that has to be followed. It will also take time before an appointee is notified or before he or she is able to receive his/her appointment papers. Umiikot ang papers. Meron pang kailangang clearance (Papers change hands. Clearance is needed),” he said.

But Duque said it was a good thing that De Mesa had promised to check the questionable appointments one by one.

Check dates first

For Sen. Francis Pangilinan, the actual date when an appointee takes his oath of office is key to determining the validity of an appointment.

“If the oath of office is allowed even after March 11 then the likely scenario is that an appointment can be thought of and undertaken even on June 29 (the eve of President Arroyo’s last day in office) and the appointment papers simply antedated to March 10,” Pangilinan said.

“All antedated appointments up to June 30 before noon provided they are antedated will be valid. If this is allowed then there can never be such thing as a midnight appointment,” he added.

Pangilinan said steps should be done to prevent the practice of antedating documents to accommodate midnight appointees.

“That is the evil sought to be prevented by the requirement that the oath of office is done prior to the beginning of the ban,” Pangilinan said.

Ready to quit but…

Meanwhile, board members of the Clark International Airport Corp. (CIAC) said they are ready to quit if required but stressed they are not midnight appointees.

“Members of the board of CIAC are elected annually by the stockholders from the BCDA (Bases Conversion and Development Authority) and the CDC (Clark Development Corp.) and it just so happened that such yearly elections are always held in May,” CIAC executive vice president Alexander Cauguiran told The STAR.

“Pursuant to the Corporation Law and the CIAC bylaws, CIAC’s annual stockholders’ meeting is scheduled every 15th day of May to elect the members of the board,” CIAC corporate secretary Pearl Sagmit said.

Cauguiran said that while stockholders elect members of the CIAC board, the President can submit a “desire letter” to the BCDA recommending anyone.

“Then the stockholders elect the recommendee and later transmit the result to the CIAC for implementation,” he said.

“None of the board members hold any document signed by President Arroyo on their post as member of the CIAC board. The election of the members of the board is in accordance with the provisions of the Corporate Code, “ he added.

Sagmit noted that the last “desire letter” made by Mrs. Arroyo was dated Dec. 8, 2009, in favor of Rafael Angeles who was then elected by the stockholders on Jan. 8, 2010.

“The last stockholders’ meeting re-electing the directors was held on May 17, 2010,” Sagmit noted.

“President Aquino can submit his own desire letter to the BCDA to express his recommendations for board member of CIAC. Once somebody else is elected to replace us, then we will graciously give way,” he said. –-Aurea Calica and Delon Porcalla (The Philippine Star) with Paolo Romero, Marvin Sy, Ding Cervantes and Rhodina Villanueva