Midnight Appointments

I am afraid we are not yet through with midnight appointments. The reconsideration of the De Castro case which affirmed with finality the power of the President to make appointments to the Supreme Court during the prohibited period has not settled everything. In other words, the De Castro decision did not reverse everything that was in the earlier case of Castillo v. Aytona.

Recall the philosophy behind the Aytona decision. The Court said: “But it is common sense to believe that after the proclamation of the election of President Macapagal, his [Garcia’s] was no more than a ‘care-taker’ administration. He was duty bound to prepare for the orderly transfer of authority to the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes.”

At the time of Aytona, of course, the cut-off point or the starting point for the “care-taker” regime was the proclamation of the incoming President. But that was because under the 1935 Constitution an incumbent President was allowed to run for re-election. Under our 1987 Constitution, however, we know from the start that the incumbent President would no longer be President after June 30. It was for this reason that, for the sake of clarity, the 1987 Constitution set the start of the prohibited period from two months before the next presidential election.

This year, two months before the next presidential election would literally fall on March 10. Would an appointment made on March 9 come under the prohibition?

I am asking this because, for instance, a new appointment dated March 9 was extended to the Chairman and members of the Board of Pagcor. If we follow the letter of the law, March 9 is not covered by the prohibition. But here I may have to appeal to a recent decision of the Supreme Court which made much of the spirit of the law as against the letter of the law. In exempting some municipalities from the law’s minimum income requirement before they could become cities the Supreme Court appealed to the spirit of the law and allowed the penurious municipalities to become cities. Let me quote:

“Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter; and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.”

My simple question would be: Are appointments made one minute before midnight of March 9 or even one full day before March 10, the start of the prohibited period, faithful to the spirit of the law? The clear spirit of the law is that when it is certain that the incumbent President will no longer be president, the incumbent’s role is reduced to a mere care-taker “bound to prepare for the orderly transfer of authority to the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor.” Or may the President still perform acts that would tie the hands of her successor? Is that a rhetorical question?

I have another question about last minute appointments. How does one reckon the date of appointments? There are two steps in the appointment process. First is offer, and the second is acceptance. There is no appointment (but only a nomination) until the offer is accepted. Before the offer is accepted, it may be withdrawn by the appointing authority. After acceptance and not earlier, the appointment is complete. To take my example again, (and I understand there are other examples) the reappointments of the Chairman and members of the Board of Pagcor were offered, according to the document I have seen, on March 9. Was it also accepted and therefore perfected on March 9? That would be an interesting question to debate about.

At any rate, even if it was perfected after March 9 it can still be a valid “temporary appointment.” During the two months immediately before the next presidential election Article VII, Section 15 allows “temporary appointment to executive positions when continued vacancies would prejudice public service or endanger public safety.” Vacancies in Pagcor, I suppose, since gambling is the lifeblood of the nation, could prejudice public interest or even endanger public safety! However, as is well known, temporary appointments are revocable at the instance of the appointing authority.

These are issues of legality, of course. But legality is not everything. Among honorable people propriety and delicadeza are treasured values.

31 May 2010