CA affirms dismissal of 5 GMA midnight appointees

By Edu Punay, The Philippine Star

Posted at Sep 01 2012 09:00 AM | Updated as of Sep 01 2012 05:00 PM

MANILA, Philippines - The Court of Appeals (CA) yesterday upheld the constitutionality of President Aquino’s second executive order that revoked the midnight appointments of the previous administration.

In separate decisions, the former eighth division of the appellate court dismissed the petitions filed by five former officials who were appointed to their respective posts during the 2010 election period when appointments were banned under the Constitution.

The CA basically held that Executive Order 2 was consistent with Article VII Section 15 of the Constitution and was issued by Aquino to implement the ban.

After hearing the cases individually upon order of the Supreme Court (SC), the CA held that petitioners – former Subic Bay Metropolitan Board Authority (SBMA) board member Eddie Tamondong, former Philippine National Railways (PNR) general manager Manuel Andal, former Nayong Pilipino head Charito Planas, former Quezon City prosecutor Dindo Venturanza and State Solicitor II Cheloy Garafil – were all appointed during the period of the ban on midnight appointments specified in the Constitution.

The Constitution states 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 will prejudice public service or endanger public safety.”

Petitioners argued they are not covered by EO 2 since their appointment papers were signed before the period of the ban started on March 11, 2010, or two months before May 11, 2010 elections.

But the CA dismissed their argument. “The clear intent behind the ban on making midnight appointments having been established and since the ‘appointment’ contemplated in said provisions includes the acceptance, taking of an oath and assumption of duties by the appointee, EO No. 2 cannot be said to be without sufficient basis,” the CA said.

“Oath of office is a qualifying requirement for a public office, a pre-requisite to the full investiture of the office,” it stressed.

Tamondong was reappointed by former President and now Pampanga Rep. Gloria Macapagal-Arroyo on March 1, 2010.

The CA explained in a 24-page ruling that Tamondong’s appointment was covered by the ban since he took his oath of office on March 25, 2010.

“Applying the precepts in the instant petition, there is no quibbling that the appointment extended by GMA in favor of Atty. Tamondong is a midnight appointment under EO No. 2,” the CA said.

Andal took his oath on March 22, 2010, Planas was reappointed on March 16, 2010, Venturanza was appointed on March 12, 2010 and took his oath three days later, while Garafil took her oath on March 22, 2010. These dates fell within the period of the ban.

While the petitions of Venturanza and Garafil were dismissed insofar as legality of EO No. 2 is concerned, the issue on “whether or not to uphold their appointments is hereby referred to the Office of the President which has sole authority and discretion to pass upon them.”

The appellate court, however, took exception to the application of EO 2 to another petitioner, former National Commission on Muslim Filipinos (NCMF) secretary Bai Omera Dianalan-Lucman.

In another 26-page decision, the CA held that Lucman took her oath of office a day before the period of ban started.

“Since petitioner took her oath on March 10, 2010, it was then when her right to enter into the position became plenary and complete,” the appellate court said.

Lucman’s appointment was also revoked since she was supposedly disqualified for the post, being a woman who cannot be a leader of the Hajj or pilgrimage of Filipino Muslims to Mecca based on Islamic tradition.

But the appellate court gave weight to the affidavit of an Islamic law expert Aleem Said Ahmad Basher, who said a woman may lead the Hajj, which is “more of social, ceremonial or diplomatic function,” since she will not lead prayer.

With this, the CA ordered Lucman’s reinstatement to the post to serve the unexpired portion of her term. But since her term already ended last March, the court instead ordered payment of her salary and other benefits from the period she was removed from office.

All six rulings were penned by Associate Justice Noel Tijam with Associate Justices Romeo Barza and Edwin Sorongon concurring.

The petitions were filed in 2010 before the SC. In October of that year, the SC had issued status quo ante order on the cases of Lucman, Tamondong and Garafil.

Last Jan. 31, the SC remanded all six cases to the CA, and allowed the appellate court to receive evidence and the factual incidents on the issues.

The high court explained that it is not a trier of facts and cannot receive evidence coming from the parties.