Subic Bay Director want EO on midnight appointments voided

as 2 ‘midnight’ appointees go to SC

DOJ official, SBMA director want EO voided

BY EVANGELINE DE VERA - malaya.com.p

TWO separate petitions were filed at the Supreme Court yesterday which sought to declare as unconstitutional Executive Order No. 2 issued by President Aquino recalling the "midnight appointments" of former President and now Pampanga Rep. Gloria Arroyo.

The petitions were filed by lawyer Jose Arturo de Castro in his capacity as assistant secretary of the Department of Justice, and lawyer Eddie Tamondong, director of the Subic Bay Metropolitan Authority.

The petitioners asked the high court to issue a temporary restraining order and/or preliminary injunction against the implementation of Executive Order No. 2, dated July 30, revoking the appointments made by Arroyo under EO 883, in violation of the constitutional ban on midnight appointments.

EO 883 granted career service officer rank to lawyers in government service.

At least 977 suspected midnight appointments have been identified and will undergo further review by concerned Cabinet secretaries.

Covered by EO 2 are officials appointed on or after March 11, 2010; appointed prior to March 11 but took their oaths and assumed office after the date; or designated during a 45-day ban under the Omnibus Election Code.

The Office of the President, represented by Executive Secretary Paquito Ochoa Jr., was named as respondent.

In his 84-page petition, De Castro said EO No. 2 deprives civil service employees of security of tenure and summarily dismisses them without just cause and without compliance with the requirements of due process.

De Castro argued EO No. 2 "even covers appointments made by officials other than the President and issued within the two-month period preceding the May 10, 2010 elections but outside the 45-day period mandated under Section 261 of the Omnibus Election Code."

He explained that there is a 15-day window period in the ban, which allows authorities other than the President to issue appointments without transgressing either the Constitution or the Omnibus Election Code.

Thus, De Castro said his re-appointment as assistant secretary in DOJ dated March 1, 2010 should not therefore be considered a midnight appointment.

"The Office of the President has no jurisdiction to unilaterally remove persons whom they believe to be unlawfully holding or exercising a public office/position on the premise of being ‘midnight appointees’ because the said power is judicial in nature, and rests with the courts," he argued.

De Castro also asked the high court to nullify EO No. 3 dated May 28, 2010 as it applied the same policy of removing him from his career position as assistant secretary of the DOJ, in violation of his security of tenure under the Constitution and the Civil Service laws.

De Castro was appointed associate prosecution attorney on Dec. 4, 2006, and held that position until Jan. 19, 2009 when he was appointed as assistant secretary.

Tamondong, a lawyer, said it was wrong for the Palace to include him in the list of midnight appointees because he was re-appointed by Arroyo last March 1, or 10 days before the ban on midnight appointments took effect.

Tamondong said the EO No. 2 is likewise contrary to R.A. 7227 (Bases Conversion and Development Act of 1992), which gives him a term of six years or up to March 2016.

"Concededly, the President, as the Chief Executive, has the power to issue executive orders, but such orders should not amend, supersede, modify or repeal existing laws passed by Congress. In fact, EOs are meant to carry out constitutional or statutory enactments, not supplant or override them, as EO 2 has done," he said.