At least two government officials have asked the Supreme Court to nullify President Benigno Aquino III’s executive order against the so-called midnight appointments of former President Gloria Macapagal-Arroyo.

The petitions were separately filed on Monday by Justice assistant secretary Jose Arturo de Castro JD and Subic Bay Metropolitan Authority (SBMA) director Eddie Tamondong, who were both affected by the order.

Both petitioners said Aquino’s Executive Order No. 2, signed July 30, was unconstitutional and asked the court to issue a temporary restraining order (TRO) against its implementation.

The two accused Aquino of vindictiveness and usurpation of power.

EO No. 2 revokes the appointments made by Arroyo under EO 883, which granted career service officer rank to lawyers in the government executive service.

Covered by EO No. 2 are officials who were 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 appointment ban under the Omnibus Election Code.

Aquino’s second executive order reportedly affected some 977 suspected midnight appointments.

Named respondent in the suits was the Office of the President, represented by Executive Secretary Paquito Ochoa Jr.

Unconstitutional

In his 84-page petition, De Castro said EO No. 2 violates Section 1, Article III and Section 2b, Article IX of the Constitution, respectively involving “deprivation of persons of their property rights without just cause and compliance with the cardinal requirement of due process" and “deprivation of civil service employees of security of tenure and summarily dismissing them without just cause and without compliance with the cardinal requirements of due process."

De Castro argued that Malacañang violated Section 15, Article VII because 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 said 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 Section 261 of the Omnibus Election Code.

He said this is the reason why his re-appointment as Justice assistant secretary on March 1, 2010 should not be considered a midnight appointment.

De Castro accused Aquino of usurping judicial power in issuing the controversial order.

“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 said.

Hate and vindictiveness

For his part, Tamondong, a lawyer of 43 years in practice, said Malacañang erred in inclduing him in the lists of midnight appointees because Arroyo re-appointed him last March 1, or 10 days before the ban on midnight appointments took effect.

Since he claimed not to be covered by the ban, Tamondong said the order is likewise contrary to RA 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.

Tamondong accused Aquino a carrying out "a twin policy of hate and vindictiveness" toward Arroyo as evidenced by his first State of the Nation Address (SONA), which the SBMA official said focused on running after perceived grafter and jailing people identified with the Arroyo couple.

He said EO 2 perfectly demonstrated “an arbitrary misuse of executive power" that “massacred, as it were, hundreds, if not thousands of employees appointed to various positions in government by the former President, the number one and favorite object of hate by the current administration." - KBK, GMANews.TV