Noynoy fires all GMA midnight appointees

MANILA, Philippines – President Aquino ordered yesterday the revocation of the midnight appointments of the previous Arroyo administration.

The President’s directive was contained in Executive Order 2 “recalling, withdrawing, and revoking appointments issued by the previous administration in violation of the constitutional ban on midnight appointments.”

The EO, signed on July 30, stipulates conditions that constitute former President Gloria Macapagal-Arroyo’s midnight appointments in “departments, agencies, offices, and instrumentalities including government-owned or controlled corporations.” Arroyo is now a Pampanga congresswoman.

The constitutional ban on appointments took effect 45 days before the May 10 general elections.

The EO also cited Article 7, Section 15 of the Constitution, which stated that “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.”

Ordered revoked were appointments made on or after March 11 and also those made before March 11 in which the appointee had accepted, or taken his oath, or assumed public office on or after March 11, 2010.

Also covered by the revocation were “anticipated appointments,” or those made before March 11 but took effect after that day, or appointments to positions that became vacant only after March 11.

Not covered by the revocation order were “temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority.”

Review underway

Chief Presidential Legal Counsel Eduardo de Mesa said there were 977 appointments made before the ban.

“I’m not saying that all of those 977 can be considered as midnight appointees or appointments. That is the total number. Some of those appointments could be valid. We’ll have to consider them one by one,” he said.

De Mesa declined to name names or say whether the rescinded appointments covered officials of the Metropolitan Waterworks and Sewerage System whom Mr. Aquino called midnight appointees in his first State of the Nation Address.

De Mesa said the number of those whose appointments would have to be “recalled, withdrawn or revoked” could only be determined after an investigation by the different Cabinet secretaries and heads of concerned agencies.

EO 2 or “recalling, withdrawing, and revoking appointments” made by the Arroyo government was issued because of the constitutional ban on midnight appointments, De Mesa said.

“The sheer number of these appointments gives basis to the opinion or to the beliefs that they were made for the purpose of depriving the next President the prerogative of making these appointments and that they were made contrary to the principle that within the presidential election period, an outgoing administration must act only as a caretaker administration, duty-bound to prepare for the orderly transfer of authority to the successor and is thus enjoined from performing acts which would embarrass or obstruct the policies of the successor or negate the successor’s executive prerogative to exercise his appointing power,” De Mesa said in a press briefing at Malacañang.

“It is a necessity to uphold the principle that appointments to the civil service must be made on the basis of merit and fitness, it is imperative to recall, withdraw and revoke all appointments made in violation of the letter and the spirit of the law,” EO 2 read.

No ‘blank statement’

De Mesa said they could not make a “blank statement” that all appointments made prior to March 10 were all null and void or illegal.

“These are those that are enumerated in EO No. 2. For want of a better term to describe the circumstances surrounding these appointments, we referred to them as midnight appointments. These appointments specifically refer to those which were made after March 10 or when the appointee took his oath or assumed office after March 10,” he said.

“Now, the Cabinet secretaries will be asked to conduct an investigation and submit a list of those whose appointments suffer from any of the aforementioned infirmities and they will be informed accordingly that their appointments have been revoked unless they have already been, in the meantime, replaced or resigned voluntarily,” De Mesa said.

De Mesa said it would be “very much appreciated” if the midnight appointees themselves would resign to avoid being fired.

“There were some difficulties in determining or collating all of these appointments,” he said.

De Mesa conceded that those whose appointments had been “completed” before March 10 would not be covered by the EO. But he said the others might not be able to skirt the ban.

“When I say ‘completed’ that means that their appointment was issued and they took their oath and assumed office before March 10, then their appointment is presumably valid unless it suffers from some other legal infirmity,” he explained.

“But we have also made our investigation (and it) showed that many of these appointments were actually released after March 10 and the appointees took oath after March 10 and it also appears that some of the appointments were antedated and this could be verified from the mailing time or the barcode numbers of their appointments,” he said.

Potential legal row

Asked whether the EO might be contested before the courts, De Mesa: “We hope they don’t but that is the prerogative of those who are affected.”

De Mesa also said he could not any see criminal case that might be filed against Arroyo for the midnight appointments.

“Well, she’s no longer the President but her actions and appointments can be nullified,” De Mesa said. “She enjoyed immunity at that time (she made the appointments).”

Presidential spokesman Edwin Lacierda also pointed out that EO 2 would not overlap with Memorandum Circular Nos. 1 and 2 because the MCs covered appointees who were coterminous with Mrs. Arroyo.

He said many of the midnight appointees got fixed terms.

MC 1 directed all non-career executive service officers to vacate their posts and for contractual workers to have their contracts extended only until July 31.

MC 2 merely extended the term of the non-CESO officials occupying CESO positions until Oct. 31.

De Mesa said the positions of the midnight appointees would be declared vacant and Executive Secretary Paquito Ochoa Jr. had been authorized by the President to designate officers-in-charge.

Justified

Sen. Franklin Drilon said Malacañang was justified in revoking the midnight appointments.

“As a matter of principle, the appointment is completed upon your assumption to office and if the assumption took place way after March 10 then there is really basis to question the validity of the appointment as having been done during the prohibited period,” Drilon said.

He said that the concerned appointees cannot just brandish their appointment papers to justify their appointments.

Drilon cited the case of Aytona vs. Castillo in which the court ruled that the fact that 350 appointments were made in just one day was “clearly an intent to avoid the prohibition because obviously the appointment of 350 in one day is not dictated by public interest.”

“The same argument can be used here. You have nearly a thousand people, suddenly you appointed between March 5 and March 9, then it can be argued that the appointment was really done to beat the deadline,” Drilon said.

“If there was just one or two and well thought of, that could be indeed validated but the circumstances of the appointments, 900 made in the first week of March is obviously an attempt to circumvent the Constitution and on that basis it (revocation of appointments) can be done,” he added.

Drilon said that the departure of all 977 appointees would not affect the operations of the concerned government agencies.

“In the first place, they were never there. That’s why they’re called midnight,” he said.

Senate President Juan Ponce Enrile also said the President had every right to review the appointments made by his predecessor.

“If in his opinion the preceding President could not appoint two months before and two months after a national election, then it is the prerogative of the succeeding President to act,” Enrile said.

“If there is an issue, let the courts decide,” he added.

Sen. Ramon Revilla Jr. also welcomed the move of the President and called on all sectors to give him a chance to prove his worth.

What midnight appointments?

The camp of Mrs. Arroyo, meanwhile, denied there had been midnight appointments during her term and appealed to President Aquino to carry out any dismissals only after Christmas.

“We did not make any appointments beyond the prohibited period because they all passed through the PMS (Presidential Management Staff),” Arroyo spokesperson Elena Bautista-Horn told reporters.

She headed the PMS in the last months of the Arroyo administration.

“We appeal to the good hearts of those in Malacañang to consider those working well in government to give them due process and let them receive their (Christmas) benefits so they can prepare for their unemployment and look for jobs,” she said.

She said Civil Service Commission rules state that employees and officials may only be removed if there is just cause. She also advised aggrieved employees to bring their case to the courts.

“If you are a CESO official, the process to remove you is long and it takes one year to remove someone,” she said. –Aurea Calica (The Philippine Star) with Marvin Sy and Paolo Romero