The Supreme Court received on Monday two petitions seeking to nullify Executive Order (EO) No. 2 that revoked “midnight appointments” issued by former President Gloria Macapagal Arroyo.

The petitions were separately filed by Assistant Secretary Jose Arturo de Castro of the Department of Justice (DoJ) and Director Eddie Tamondong of the Subic Bay Metropolitan Authority (SBMA).

Both petitioners asked the High Court to issue a temporary restraining order (TRO) stopping Malacañang from enforcing EO 2, which they described as “arbitrary, capricious, unconstitutional, and contrary to law.”

Executive Secretary Paquito Ochoa Jr. was named sole respondent in the two petitions. Signed by President Benigno S. Aquino III on July 30, EO 2 revoked the appointments made by the previous administration allegedly after March 10, two months before the national election.

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

Covered by EO 2 are those 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 ban under the Omnibus Election Code.

In his petition, De Castro also questioned President Aquino’s EO 3 revoking a previous order issued by Arroyo – EO 883 – which granted career service officer rank to lawyers in the government executive service.

De Castro said EO 2 violates Section 2b, Article IX of the Constitution by depriving civil service employees of security of tenure and summarily dismissing them without just cause and without compliance with the cardinal requirements of due process.

He said EO 3, on the other hand, constitutes clear and culpable usurpation of judicial power.
“(EO) 3 is unconstitutional,” De Castro pointed out. “It violates the basic principle of separation of powers. (Malacañang) encroaches and usurps judicial functions by declaring EO 883 null and void – an act which impinges on the separation of powers allocating to the (Supreme Court) the power to adjudicate the illegality of executive orders.”

Tamondong, in his petition, argued that the issuance of EO 2 “demonstrates an arbitrary misuse of executive power.”

He also assailed the present administration’s alleged “twin policy of hate and vindictiveness.”
According to him, EO 2 “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.”

Tamondong said that in filing the petition, he has no intention to cling to his position in the SBMA where he sat as director since January, 2008.

“With an honorarium/per diem of P8,500 net per board meeting held twice a month, or a total monthly compensation of P17,000, and nothing more, the undersigned, as a lawyer, can very well live without the position,” Tamondong said.

“But the issue at hand… is not just about being removed from one’s position; it is about the primacy of law passed by Congress that is being run over roughshod by a presidential issuance. And being a lawyer, sworn to uphold the Constitution and the supremacy of law, the petitioner cannot just sit idly and nonchalantly in the face of blatant misuse, if not abuse of presidential prerogative,” he added.

As in his case, Tamondong said he was appointed by Arroyo as director of SBMA for a term of six years from March 2010, or up to March 2016, in line with Republic Act 7227 or the Bases Conversion and Development Act of 1992.