January 2012 - Philippine Supreme Court Resolutions
Philippine Supreme Court Resolutions
[G.R. No. 192987 : January 31, 2012]
EDDIE U. TAMONDONG v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; G.R. NO. 193327 (ATTY. CHELOY E. VELICARIA-GARAFIL v. OFFICE OF THE PRESIDENT, REPRESENTED BY HON. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. AND SOLICITOR GENERAL JOSE ANSELMO L. CADIZ); G.R. NO. 193519 (BAI OMERA D. DIANALAN-LUCMAN v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.); G.R. NO. 193867 (ATTY. DINDO G. VENTURANZA, AS CITY PROSECUTOR OF QUEZON CITY v. OFFICE OF THE PRESIDENT, REPRESENTED BY PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES BENIGNO SIMEON C. AQUINO, EXECUTIVE SECRETARY PAQUITO v. OCHOA, JR., ET AL.); G.R. NO. 194135 (MANUEL D. ANDAL v. PAQUITO N. OCHOA, JR., AS EXECUTIVE SECRETARY AND JUNIO M. RAGRARIO); G.R. NO. 194398 (ATTY. CHARITO PLANAS v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., TOURISM SECRETARY ALBERTO A. LIM, & ATTY. APOLONIO B. ANOTA, JR.)
"G.R. No. 192987 (Eddie U. Tamondong v. Executive Secretary Paquito N. Ochoa, Jr.); G.R. No. 193327 (Atty. Cheloy E. Velicaria-Garafil v. Office of the President, represented by Hon. Executive Secretary Paquito N. Ochoa, Jr. and Solicitor General Jose Anselmo L. Cadiz); G.R. No. 193519 (Bai Omera D. Dianalan-Lucman v. Executive Secretary Paquito N. Ochoa, Jr.); G.R. No. 193867 (Atty. Dindo G. Venturanza, as City Prosecutor of Quezon City v. Office of the President, represented by President of the Republic of the Philippines Benigno Simeon C. Aquino, Executive Secretary Paquito V. Ochoa, Jr., et al.); G.R. No. 194135 (Manuel D. Andal v. Paquito N. Ochoa, Jr., as Executive Secretary and Junio M. Ragrario); G.R. No. 194398 (Atty. Charito Planas v. Executive Secretary Paquito N. Ochoa, Jr., Tourism Secretary Alberto A. Lim, & Atty. Apolonio B. Anota, Jr.)-
Intervenors (Dr. Ronald L. Adamat, in his capacity as Commissioner, National Commission on Indigenous Peoples; Angelita De Jesus-Cruz, in her capacity as Director, Subic Bay Metropolitan Authority; Atty. Jose Sonny G. Matula, Member of the Social Security Commission and National Vice President of Federation of Free Workers, Ronnie M. Nismal, Alvin R. Gonzales, Jomel B. General, Alfredo E. Maranan, Exequiel V. Bacarro, Juanito S. Facundo, Board Members, Union Officers or members of the Federation of Free Workers v. Office of the President, represented by Hon. Executive Secretary Paquito N. Ochoa, Jr., Atty. Ibarra E. Malonzo and Hon. Juan B. Santos, Chairman, Social Security Commission; Atty. Noel K. Felongco in his capacity as Commissioner of the National Commission On Indigenous Peoples; Irma A. Villanueva, in her capacity as Administrator FPR Visayas, Board of Administrators of the Cooperative Development Authority; and Francisca B. Rosquita, in her capacity as Commissioner of the National Commission On Indigenous Peoples).
RESOLUTION
On July 30, 2010, President Aquino issued through Executive Secretary Paquito N. Ochoa, Jr. Executive Order No. 2 (EO 2) entitled Recalling, Withdrawing and Revoking Appointments Issued by the Previous Administration in Violation of the Constitutional Ban on Midnight Appointments and for Other Purposes for the purpose of recalling, withdrawing, or revoking the midnight appointments made by the outgoing administration of President Arroyo.
The pertinent text of EO 2 follows:
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 of 45 days prior to the May 10, 2010 elections in violation of Section 261 of the Omnibus Election Code.
x x x
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.
x x x
Section 3. Effectivity. - This Executive Order shall take effect immediately.
Not unexpectedly, several public officials commenced in this Court various special civil actions for certiorari, prohibition, mandamus and declaratory relief to challenge the constitutionality of EO 2. In due time, several others joined the judicial fray by intervening.
The petitions pending before the Court are:
G.R. No. 192987
The first to file a judicial challenge against EO 2 was Eddie U. Tamondong, who did so on August 9, 2010 in G.R. No. 192987, self-styled as special civil actions for prohibition (to stop and prohibit the implementation and enforcement of EO 2), and for declaratory relief (to determine the validity of EO 2 and to declare the petitioner's rights). He sought injunctive relief.
Tamondong averred that he had been appointed as a regular member of the Board of Directors of the Subic Bay Metropolitan Authority (SBMA) on March 1, 2010, but had taken his oath of office only on March 25, 2010, the day he received the appointment. He insisted that his appointment was not invalid as a midnight appointment, considering that the Court ruled in Sales v. Carreon, Jr.[1] that not all midnight appointments were invalid, and that each appointment must be judged on the basis of the nature, character and merits of the individual appointment and the circumstances surrounding the appointment. He mainly prayed that respondent Executive Secretary be restrained from enforcing EO 2, and from appointing or designating any person to replace or take over his position as a director of the SBMA.
G.R. No. 193327
In G.R. No. 193327, Atty. Cheloy E. Velicaria-Garafil filed on September 1, 2010 a petition for certiorari and mandamus (with application for a temporary restraining order and a writ of preliminary mandatory injunction), praying that the Court declare EO 2 as null and void and without effect.
Garafil stated that President Arroyo had appointed her on March 5, 2010 as State Solicitor II in the Office of the Solicitor General (OSG); that she had taken her oath of office on March 22, 2010, and had assumed office only on April 6, 2010; and that she had been made to vacate her post as State Solicitor II effective August 7, 2010 by virtue of EO 2.
Garafil claimed that she had no personal knowledge of, much less control over, the transmittal process of appointments in the Office of the President; that it was improbable for her to have any hand in the transmittal of her appointment by the Office of the President; that she was not a midnight appointee; that her appointment was not made for partisan consideration because she had no ties whatsoever to her appointing authority or to the officials or personalities identified with President Arroyo; that her position in the OSG was not a plum government position that entitled her to perks and allowances over and above the standardized rates; and that her appointment was not intended for vote-buying because she was in no position to influence people to vote for the candidates of the past administration during the elections.
G.R. No. 193519
Bai Omera D. Dianalan-Lucman, the petitioner in G.R. No. 193519, a special civil action for prohibition and mandamus brought on September 16, 2010, assailed the validity of EO 2 on the ground that EO 2, in defining the term midnight appointments, disregarded the guarantees of due process, security of tenure and removal only for a cause enshrined in the Constitution and other applicable laws. She asserted that by the plain meaning of Section 1 (a) and Section 2 of EO 2, her appointment had been declared a midnight appointment, had been recalled, withdrawn and revoked, and her position as Secretary and Commissioner of the National Commission on Muslim Filipinos (NCMF) had been declared vacant; and that the danger was clear and present that she could be ousted and replaced at anytime, even before the Court could act on her petition.
G.R. No. 193867
In G.R. No. 193867, Atty. Dindo G. Venturanza's petition for certiorari, prohibition and mandamus brought on October 14, 2010 sought judgment declaring EO 2 unconstitutional null and void, and, in the meanwhile, to restrain the enforcement of EO 2 as against him.
According to Atty. Venturanza, President Arroyo appointed him as City Prosecutor of Quezon City on February 23, 2010, but his letter of commission was officially released only on March 10, 2010, following which he took his oath of office on March 15, 2010 and immediately assumed the duties and responsibilities of City Prosecutor. However, he received on September 1, 2010 an undated copy of Department Order No. 556 (DO 556) issued by Secretary of Justice Leila De Lima, stating that she had designated Sr. Deputy State Prosecutor Richard Anthony Fadullon as the Officer-In-Charge of the Office of the City Prosecutor of Quezon City. Fadullon assumed the functions of the position without delay. On October 6, 2010, De Lima informed Atty. Venturanza that the provisions of EO 2 covered him; hence, he should cease and desist from further performing the functions of City Prosecutor of Quezon City.
G.R. No. 194135
In G.R. No. 194135, Manuel D. Andal filed on November 5, 2010 a petition for certiorari, principally seeking the nullification of EO 2 for having been issued without or in excess of its jurisdiction, or with grave abuse of discretion.
It appears that on March 5, 2010 President Arroyo appointed Andal then acting as General Manager of the Philippine National Railways (PNR), as permanent PNR General Manager; that his appointment papers were also issued on March 5, 2010; that Andal, being then still in Japan on official business, came to know of his permanent appointment only on March 9, 2010; that following his return to the Philippines on March 16, 2010, he continued to discharge his functions as PNR General Manager; and that he took his oath of office on March 22, 2010.
As a result of the issuance of EO 2, respondent Junio M. Ragrario was appointed as PNR General Manager On August 27, 2010. Ragrario took his oath of office on September 7, 2010. Andal learned of Ragrario's appointment only when Undersecretary Sicat verbally instructed Andal to immediately turn over the office of the PNR General Manager to Ragrario.
G.R. No. 194398
On November 25, 2010, Atty. Charito Planas commenced G.R. No. 194398 to declare EO 2 unconstitutional and inapplicable to herself.
Atty. Planas had been appointed and re-appointed by President Arroyo as Commissioner and Executive Director of the Nayong Pilipino Foundation (NPF) from 2001 up to 2010. On September 3, 2010, Department of Tourism (DOT) Secretary Alberto Lim informed her in writing that her appointment as a Member of the Board of Trustees and as Executive Director of NPF 2 was being revoked pursuant to EO 2 as a midnight appointment.
In the meantime, on September 8, 2010, President Aquino appointed respondent Atty. Apolonio B. Anota, Jr. to replace Atty. Planas in NPF. Anota assumed office on October 11, 2010 and Atty. Planas was furnished a copy of Anota's appointment. Considering that she continuously refused to vacate her position in NPF, Secretary Lim urged her to relinquish the position by officially recognizing her efforts and dedication as an officer of NPF, and also giving her the assurance that he would be recommending her engagement as a consultant to the Board of Trustees of NPF. Nonetheless, she did not yield, and continued to insist that she was the legitimate holder of the positions in controversy because her appointment on March 9, 2010 had been validly made. She contended that the Aquino administration had impliedly recognized the validity of her appointment based on the following acts, namely: (a) DOT required NPF to submit an accomplishment report for the first 100 days of the Aquino administration; (b) upon invitation of DOT, she represented NPF during the Congressional Budget hearings and presentation before the Senate Finance Committee; and (c) the House Committee on Tourism even commended her during the budget presentation because NPF had become self-reliant in its operations under her leadership.
Dr. Ronald L. Adamat (Intervenor)
On October 15, 2010, Ronald L. Adamat sought leave to intervene in G.R. No. 192987 (Tamondong) to have EO 2 declared null and void. He alleged that President Arroyo had appointed him as Commissioner of the National Commission on Indigenous Peoples (NCIP) on March 5, 2010; that he had taken his oath of office on March 17, 2010; and that on October 5, 2010, he had received a Memorandum dated October 1, 2010 from Secretary Ochoa revoking his appointment as NCIP Commissioner pursuant to EO 2.
Adamat maintained that under the opinion dated August 31, 2010 of the Personnel Policies and Standards Office of the Civil Service Commission (CSC), the period of the prohibition against the issuance of an appointment was two months before the election for the President and 45 days before the regular elections (or 30 days in case of special elections) for other appointment authorities; that the prohibition to issue appointment in relation to the May 10, 2010 national and local elections started on March 10, 2010 for the President and on March 26, 2010 for other appointing authorities; and that, as such, appointments issued before March 10, 2010 by the President and before March 26, 2010, by other appointing authorities were valid and not midnight appointments.
Adamat contended that the effectivity of an appointment was on the date of its issuance; and that the determining point of entitlement to salary was the date of assumption of duty, referring to the letter dated August 31, 2010 of Azucena Perez-Ezleta, Director IV of the CSC, citing Section 1, Rule IV of CSC Memorandum Circular No. 40, series of 1998 (Revised Omnibus Rules on Appointments and other Personnel Actions), citing Memorandum Circular No. 40, Series of 1998.cralaw
Angelita De Jesus-Cruz (Intervenor)
On October 18, 2010, Angelita De Jesus-Cruz moved to intervene in the Tamondong case.
De Jesus-Cruz represented that President Arroyo had appointed her on March 1, 2010 as a Director of the Subic Bay Metropolitan Authority (SBMA) for a term of three years; and that she had taken her oath of office on March 25, 2010. She assailed the constitutionality of EO 2, because EO 2 violated her right to security of tenure, and contravened Section 13(c)(A) of Republic Act 7227 fixing the term of office of SBMA directors at six years and three years.
Jose Sonny G. Matula, et al. (Intervenors)
On December 7, 2010, Atty. Jose Sonny G. Matula, et al. filed their petition-in-intervention in relation to the petitions of Tamondong, Garafil and Lucman, stating that EO 2 was invalid for being contrary to the Constitution and for being violative of their right to due process as officers and employees of the Social Security Commission (SSC) by virtue of EO 2's revocation of their appointments.
Matula, et al. submitted that despite the status quo ante order the respondents continued to implement EO 2 by appointing Atty. Ibarra N. Malonzo and removing Matula as Commissioner representing the Labor Sector in the SSC in derogation of his term of office that would end on August 15, 2012; that Ronnie M. Nismal was Matula's Executive Assistant V (Chief of Staff) whose tenure in office was coterminous with Matula's; that Alvin Gonzales, Alfredo Maranan, Jomel B. General, Exequiel Bacarro and Juanito Facundo, all legitimate members of the SSS and trade union leaders and members of the Governing Board of the Federation of Free Workers, were similarly situated as Nismal, and thus had personal and substantial interest in the success of the petitions assailing EO 2.
Allegedly, President Arroyo had appointed Matula as Acting Commissioner of the SSC on September 21, 2006, and on March 5, 2010 as Commissioner of the SSC with a term expiring on August 15, 2012. He took his oath of office on April 14, 2010. On November 23, 2010, Mila Pagayatan of the SSC Secretariat informed him that President Aquino appointed Malonzo to replace him.
Hence, Matula, et al. joined the petitioners in contending that EO 2 expanded the meaning of the constitutional ban against midnight appointments by including within its scope those appointed before the 60-day period prior to an election. They pointed out that the Constitution only prohibited the President from making appointments two months before the next presidential elections, but did not prohibit the appointees from accepting their appointments during the period of the ban.
Noel K. Felongco (Intervenor)
Noel K. Felongco intervened on December 21, 2010. He posited that EO 2 was unconstitutional, because, among several reasons, the evil sought to be prevented by the ban on midnight appointments was not present in his case; that the NC1P was an independent body under the Office of the President; and that his appointment, like Tamondong's, issued prior to the election ban although his assumption was during the period of the ban.
Felongco had been first appointed as Commissioner of NCIP on January 8, 2008 to serve a fixed term ending February 20, 2010. On March 5, 2010, President Arroyo reappointed him as a Commissioner of NCIP for another fixed term of three years, (expiring on February 20, 2013). He accepted his appointment and continued to discharge his duties and functions as Commissioner of NCIP, having taken his oath of office on March 17, 2010.
Felongco was replaced by Dionesia Banua who was appointed on October 31, 2010, and who started performing her functions as Commissioner of the NCIP after taking her oath of office on November 18, 2010.
Irma Villanueva &
Francisca Rosquita (Intervenors)
Irma Villanueva and Francisca Rosquita intervened to declare EO 2 null and void. Initially, on August 3, 2010, they sought to intervene in G.R. No. 192991 (De Castro), but on October 13, 2010 they expressly asked to be allowed to intervene instead in G.R. N. 192987 (Tamondong), stating that Tamondong's petition more squarely raised the issue of the constitutionality of EO 2. They alternatively prayed that should the cases involving Garafil and Lucman be later consolidated with Tamondong's, they should be considered as intervenors in such other cases.
On March 3, 2010, President Arroyo appointed Villanueva as Administrator for the Visayas of the Board of Administrators of the Cooperative Development Authority in the Department of Finance. Villanueva took her oath of office on April 13, 2010. On the other hand, President Arroyo appointed Rosquita as NCIP Commissioner on March 5, 2010. Rosquita took her oath on March 18, 2010. They both averred that EO 2 tended to invalidate their appointments.
On October 11, 2010, Villanueva and Rosquita supplemented their intervention after Secretary Ochoa issued a memorandum revoking the appointment of Rosquita as NCIP Commissioner. Seeking clarification, the NCIP Executive Director wrote a letter to the CSC Personnel Policies and Standards Office on July 12, 2010, inquiring whether the employees of the Government appointed before March 10, 2010 were considered midnight appointees. In a letter dated August 31, 2010, the CSC Policies Office confirmed that under the CSC Appointment Rules, government employees appointed before March 10, 2010 were not considered midnight appointees, even if they had taken their oaths of office or assumed office after March 10, 2010. The intervenors contended, therefore, that EO 2 revised the CSC's Appointment Rules, and trampled on the CSC's prerogative as an independent constitutional commission.
On November 10, 2010, Rosquita filed a manifestation to the effect that on November 6, 2010, the Office of the President announced the appointment of her replacement.
Position of the
Office of the Solicitor General (OSG)
In the main, the OSG defended the constitutionality of EO 2, stressing that the definition of midnight appointments under EO 2 was not void for overbreadth, because the term appointment referred to the entire process of appointment, including the acceptance and assumption by the appointee; that EO 2 did not amend the definition of midnight appointments but only clarified its meaning inasmuch as the Constitution did not provide a definition of every term contained therein; and that the appointments of the petitioners, being midnight appointments, could be revoked and their resulting removal from office was not a violation of due process.
The OSG submitted out that the appointments of the petitioners were irregular, and made for partisan reasons (as borne out by their number and the timing of their making); that the dates of release of the appointments were unknown and most of the appointments did not even first pass through the Malaca�ang Records Office before release, contrary to established and time-honored procedure; and that the barcodes imprinted on the appointment papers of some appointees bore telltale signs of fraud and discrepancies.
The OSG reiterated the principle, first announced in Aytona v. Castillo, that the duty of an outgoing president was to be a mere caretaker of the government who might not fill up positions in government except in exigent circumstances. It argued that during the transition period, an outgoing President was mandated to facilitate the smooth transfer of the reins of power the next administration; that in so doing, an outgoing President should be doubly careful in filling up vacancies in government positions, especially those with fixed terms of office, and in promoting individuals to permanent positions; that an outgoing President must not only study the qualifications of prospective appointees but, far more importantly, must thoroughly evaluate the immediate need for filling up such positions in the government; that the sheer number of appointees - more than 900 in the first days of March 2010 - betrayed the lack of deliberate action and careful consideration that must necessarily attend each appointment; that by reason of their volume, time of their making and the proximity of. the constitutional ban, the appointments had all the earmarks of irregularity; that the appointments were patently made with undue haste and deliberate intent to circumvent the limitations imposed on the appointing power of the outgoing President; and that the large; number of such appointments, being in complete disregard of the intent and spirit of the constitutional ban on midnight appointments, necessitated one swift revocation that only an executive fiat like EO 2 could accomplish.
Issues
- Whether the appointments of the petitioners and intervenors were midnight appointments within the coverage of EO 2;
- Whether all midnight appointments, including those of the petitioners and intervenors, were invalid;
- Whether the appointments of the petitioners and intervenors were made with undue haste, hurried maneuvers, for partisan reasons, and not in accordance with good faith;
- Whether the appointments of the petitioners and intervenors were irregularly made; and
- Whether E.O. 2 violated the Civil Service Rules on Appointment.
It is plain from the foregoing that the just resolution of the matters and issues in these consolidated special civil actions will require the assessment of different factual circumstances attendant in each of the appointments made. Yet, the Court is not a trier of facts, and cannot receive and assess the evidence of the parties. We feel compelled, therefore, to refer these cases to the Court of Appeals for further proceedings, including the reception and assessment of the evidence from all the parties.
For this purpose, the Court of Appeals shall have the authority to resolve all pending matters and applications, and to decide the issues as if these cases have been originally commenced in the Court of Appeals.cralaw
WHEREFORE, the Court REFERS these consolidated special civil actions to the Court of Appeals for further proceedings and judicious resolution as if these cases have been originally commenced in the Court of Appeals.
In view of the above Resolution, the Court further REFERS the following:
(a) Letter dated December 6, 2011 of Rizalina B. Tiongson, Director IV, Docket Management Service, filed by the Office of the Solicitor General (OSG), requesting for a copy of the position paper of Datu Mahumanay Bagi in G.R. No. 193519;
(b) Motion for Extension of Time to File Reply (to OSG's Comment dated January 20, 2011) dated November 18, 2011 filed by Attys. Rogelio A. Cortes and Cecilia L. Cinco of the CRC LAW FIRM, counsel for petitioner in G.R. No. 193867, Suite 404 Manila Luxury, 2 Pearl Drive Corner Gold Loop Street, Ortigas Center, Pasig City 1605;
(c) Reply (to OSG's Consolidated Comment dated June 30, 2011) dated November 24, 2011 filed by counsel for intervenors Irma A. Villanueva and Francisca B. Rosquita in compliance with the resolution of July 26, 2011;
(d) Manifestation and Motion dated December 6, 2011 filed by the OSG relative to the show cause resolution of November 22, 2011;
(e) Comment (on the Position Paper of Datu Mahumanay Bagi) dated December 14, 2011 filed by the OSG in compliance with the resolution of November 22, 2011;
(f) Manifestation and Motion dated December 16, 2011 filed by counsel for petitioner in G.R. No. 193867, praying that the additional copies of the Reply (to OSG's Comment dated January 20, 2011) be admitted;
(g) Aforesaid Reply dated December 8, 2013 filed by counsel for petitioner in G.R. No. 193867 in compliance with the resolution of February 1, 2011;
(h) Motion for Extension of Time to File Reply filed by counsel for petitioner in G.R. No. 193867;
(i) Compliance and Reply (to OSG's Comment) dated December 14, 2011 filed by counsel for petitioner in compliance with the resolution of November 22, 2011;
(j) Letter dated December 20, 2011 of Ronnie M. Nismal, Executive Assistant V, Social Security Commission, 12th Floor, SSS Building, Ayala Avenue corner V.A. Rufino St., Makati, Metro Manila, appealing for the immediate resolution of the question on the constitutionality of Executive Order No. 2; and
(k) Compliance (with the show cause resolution of November 22, 2011) dated December 9, 2011 filed by counsel for intervenors Villanueva and Rosquita. Brion, J., no part in G.R. No. 194398." Abad and Sereno, JJ., on leave.
Very truly yours,
(Sgd.) ENRIQUETA E. VIDAL
Clerk of Court
Endnotes:
[1] G.R. No. 160791, February 13, 2007, 515 SCRA 597.
