MANILA, Philippines (UPDATE 3) - President Benigno Aquino III on Wednesday ordered the immediate removal of all "midnight appointees" of the previous administration for violating a 60-day constitutional ban on presidential appointments before a national election.
Executive Order No. 2, which was signed last July 30, covers midnight appointees of the President "and other appointing authorities in departments, agencies, offices and instrumentalities, including government-owned or controlled corporations" that:
- were appointed “on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted or taken his oath, or assumed public office on or after March 11, 2010, except temporary appointments… when continued vacancies will prejudice public service…”
- “those made prior to March 11, 2010 but to take effect after said date or appointments to office that would be vacant only after March 11, 2010;
- “appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections in violation of Sec 261 of the Omnibus Election Code.
Presidential legal counsel Ed de Mesa said all presidential appointees whose appointments were not completed on or before March 10 are considered midnight appointees. At least 977 presidential appointees were made in all branches of government on or prior to March 10, he added.
(Click here for story and list of midnight appointees.)
(Click here for story and additional list of midnight appointees.)
"The sheer number of these appointments gives basis to the opinion or to the belief that they were made for the purpose of depriving the next president of the prerogative of making these appointments,” he told Malacañang reporters.
He added: "I am not saying that all of those 977 can be considered midnight appointees. Some of those appointments may be valid. We have to consider them one by one."
De Mesa said some of the midnight appointees are prosecutors, agrarian reform officers, undersecretaries and assistant secretaries. He added that most of them have been replaced because they are co-terminus with the previous president while some were removed through Memorandum Circular 1.
The presidential legal counsel said the midnight appointments 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 powers."
Arroyo camp: Show proof of 'midnight appointments'
A spokesman of former President and now Pampanga 2nd District Rep. Gloria Macapagal Arroyo, meanwhile, challenged Malacañang to prove that appointments made by Mrs. Arroyo towards the end of her term violate a constitutional ban on midnight appointments.
Speaking to ANC, former Presidential Management Staff chief Elena Bautista Horn denied that Mrs. Arroyo made any midnight appointment especially since her office used to process all presidential appointments.
"I'd like to put on record that we never made any midnight appointments, which means appointment signed by the President beyond the prohibited period of the Constitution," she said.
Asked about reports that some of the appointments were antedated to make it appear that they were done on or before May 10, she said: "They have to show proof that that is the case. Do they have evidence saying so?"
She also challenged the wording of Executive Order No. 2, which states that a presidential appointment is only completed upon the acceptance of the appointee. "The EO cannot go beyond or higher than what the Constitutions contains," she said, adding that presidential appointees who are affected EO could challenge it before the courts.
She said Mrs. Arroyo is maintaining the position that the constitutional ban is imposed on the appointing authority, which is the President, and not on the person being appointed.
Midnight appointments in judiciary
While Aquino's Executive Order 2 covers only midnight appointees in the executive branch, it also mentioned a constitutional ban on appointments to the judiciary during the election period.
De Mesa said Malacañang will study possible midnight appointments in the judiciary after several reporters pointed out that former President Arroyo appointed members of the Sandiganbayan and Court of Appeals during the ban. He said the administration could issue a supplemental EO that will cover the judiciary, if needed.
“If it’s legal and something has to be done, it has to be done, no matter what the backlash is,” de Mesa said.
He said the President fully acknowledges a Supreme Court decision allowing the appointment of Chief Justice Renato Corona despite the appointments ban.
Presidential spokesman Edwin Lacierda, meanwhile, said all branches of government are duty-bound to respect the SC's decision. He added, however, that Aquino chose to take his oath before Supreme Court Associate Justice Carpio-Morales because of her stand on the issue of appointing a new Chief Justice during election season.
“We do not take this as an offense on the person of the Chief Justice. More on a principle that he believes that President Gloria Macapagal Arroyo made an appointment that is not valid. Having said that, however, the Supreme Court already made a decision upholding the validity and the legality of the Chief Justice and again as I would say, that is settled law.” With a report from Willard Cheng, ABS-CBN News
Below is the complete Executive Order No.2
EXECUTIVE ORDER NO. 2
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER PURPOSES.
WHEREAS, Sec. 15, Article VII of the 1987 Constitution 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 of endanger public safety.”;
WHEREAS, in the case of “In re: Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and Hon, Vallarta as Judges of the Regional Trial Court of Branch 62 of Bago City and Branch 24 of Cabanatuan City, respectively” (AM no. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to mean that the President is neither required to make appointments nor allowed to do so during the two months immediately before the next presidential elections and up to the end of her term. The only known exceptions to this prohibition are (1) temporary appointments in the executive positions when continued vacancies will prejudice public service of endanger public safety and in the light of the recent Supreme Court decision in the case of, De Castro, et . al. vs. JBC and PGMA G.R No. 191002, 17 March 2010, (2) appointments to the Judiciary;
WHEREAS, Section 261 of the Omnibus Election Code provides that:
“Section 261. Prohibited Acts. – The following shall be guilty of an election offense:
(g) Appointments of new employees, creation of new position, promotion, or giving salary increases. – During the period of forty-five days before a regular election and thirty days before a special election.
(1) Any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority to the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed in the case of urgent need:
Provided, however, that notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.
(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations.”;
WHEREAS, it appears on record that a number of appointments were made on or about 10 March 2010 in complete disregard of the intent and spirit of the constitutional ban on midnight appointment and which deprives the new administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is necessary 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 spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the Constitution as President of the Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. – The following appointments made by the former President and other appointing authorities in departments, agencies, offices, and instrumentalities, including government-owned or controlled corporations, shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010, except 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.
(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the period o f 45 days prior to the May 10, 2010 elections in violation of Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. – When necessary to maintain efficiency in public service and ensure the continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC) to perform the duties and discharge the responsibilities of any of those whose appointment has been recalled, until the replacement of the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. – All executive issuances, orders, rules and regulations or part thereof inconsistent with the provisions of this Executive Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. – If any section or provision of this executive order shall be declared unconstitutional or invalid, the other sections or provision not affected thereby shall remain in full force and effect.
SECTION 6. Effectivity. – This Executive order shall take effect immediately.
DONE in the City of Manila, this 30th day of July, in the year Two Thousand and Ten.
(Sgd.) BENIGNO S. AQUINO III
By the President:
(Sgd. ) PAQUITO N. OCHOA, JR.