Too sweeping

Published by rudy Date posted on August 9, 2010

There is no doubt that P-Noy means well for our country. But in a democratic country under the rule of law, extreme care must also be observed in taking steps towards the achievement of the needed and desirable reforms. A President under the system of government like ours really has more powers than most other President of other countries under the same kind of government because of the centralization of authority in the Executive Department. But the Executive Department also shares powers with the Legislative and the Judicial Department.

Under this principle, the most basic and simplest rule is the delineation of power of the three branches. The Legislative branch makes the laws, the Executive branch implements these laws while the Judicial branch interprets them. No branch can encroach upon or exercise the power given to other branches without violating this principle.

Of course there is nothing wrong for the P-Noy administration to undo the many irregularities committed by the past administration. Indeed this is the initial, more imperative move to have a freer hand in effecting the changes it has envisioned. But sincere and well meaning it may be, it should also guard against doing the very same thing that it is trying to undo.

One such action is Executive Order 2 “withdrawing and revoking appointments issued by the previous administration in violation of the constitutional ban on “midnight appointments”. The order appears to be a valid exercise of the executive power because it is just implementing Section 15, Article VII of the Constitution which provides 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”.

Hence if the appointments were issued by the previous administration on or after March 11, 2010 (two months before the last May 10, 2010 elections) up to June 30, 2010 (the end of the term of the outgoing President),they may really be revoked or withdrawn.

Questionable however is that portion of EO 2 which also revokes all appointments issued by the previous administration before March 11, 2010 if the appointee had accepted, or taken his oath, or assumed office on or after March 11, 2010. This is already interpreting the meaning of “midnight” appointments as contemplated by Section 15, Article VII of the Constitution which is the function of the Judiciary.

It is questionable because it violates the basic principle that when the law is clear and unambiguous it should not be interpreted anymore. In this case the law is already clear. It only covers appointments made by the President or Acting President two months immediately preceding the next presidential elections and up to the end of his term.

The ban here is directed on the President. He is prohibited from naming or designating a person to a particular position in departments, agencies, offices, and instrumentalities including government owned and controlled corporations two months before the next presidential election or in this case, on or after March 11, 2010. It is not directed on appointees. It does not say that those who have been appointed before March 11, 2010 must have to accept, take oath or assume the position also before that date; otherwise their appointments also violate the Constitution.

For indeed it may really take time before the appointees receive their appointment papers or even after receiving them, they cannot assume office yet or immediately take the oath or may still be deciding on whether or not to accept the position. Hence it is quite probable that even if they are appointed before March 11, 2010, they are able to accept, take oath or assume office after March 11, 2010. But that does not mean that their appointments are already “midnight appointments”.

Furthermore some appointees covered by EO 2 have already been designated, assumed the position and taken their oath many years before as Officer-in-Charge (OIC). Their appointments were merely regularized. Indeed it is not even necessary for them to accept the position or take oath all over again. So the mere fact that they took their oath once more after March 11, 2010 does render their appointments revocable or withdraw-able on the theory that they are “midnight appointees”.

It is true that the process of appointment requires the appointee to accept, take oath or assume the position. But this process does not affect the validity of the appointments made before March 11, 2010. Said appointments are still valid except that they can still be withdrawn or revoked because the process is not yet complete. But once the appointees have already accepted, taken oath or assume the position even after March 11, 2010, their appointments can no longer be withdrawn, recalled or revoked. They can hold the position up to the expiration of the term of office unless they choose to resign earlier or unless sooner removed for cause provided by law.

EO 2 is therefore too sweeping when it revoked all appointments issued by the previous administration before March 11, 2010 in which the appointees had accepted, or taken oath or assumed the position on or after March 11, 2010. The EO has in effect interpreted the law which is a function of the Judiciary. It should have considered the circumstances peculiar to some appointments and exempted them from coverage. Or better still, instead of the EO, certain appointments which have clear signs of being “midnight” should have been singled out and revoked so as to precipitate a court case and an authoritative interpretation of the law by the proper branch of government.

E-mail us at –Jose C. Sison (The Philippine Star)

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