04/02/2020
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(by taking the oath) and assumed office before the ban took effect.[55]
To the respondents, to construe the word “appointment” in Section 15, Article VII
simply as an “act” of the President would defeat the purpose of the provision
because the President can easily circumvent the prohibition by simply antedating the
appointment.[56] Since the petitioners took their oath and assumed office when the
constitutional ban on appointment had already set in, they are considered midnight
appointees whose appointments are intrinsically invalid for having been made in
violation of the constitutional prohibition.
Lastly, petitioners cannot claim any violation of their right to due process or to
security of tenure simply because their appointments were invalid.[57]
ISSUE
The twin issues before us are whether the President has the power to issue E.O. No.
2 that defined the “midnight appointments” contemplated under Article VII, Section
15 of the 1987 Constitution; and if so, whether E.O. No. 2’s definition of midnight
appointment is constitutional.
A finding that E.O. No. 2’s definition of midnight appointment is constitutional (thus
rendering the petitioners’ appointments invalid) would render any ruling on the
petitioners’ security of tenure argument completely unnecessary. An appointment in
violation of the Constitution and/or the law is void and no right to security of tenure
attaches.[58]
MY CONCURRING AND DISSENTING OPINION
I vote to partially grant the petitions.
Read together, the petitions ask the Court to grant the following reliefs: first, the
declaration of the unconstitutionality of E.O. No. 2 and the reversal of the assailed
CA rulings; second, the declaration of the validity of their respective appointments
and their reinstatement to the positions they held prior to the issuance of E.O. No.
2; and, third (as prayed for by petitioners Villanueva and Rosquita) if the term of
their appointments had already expired, the grant of back wages with interest.
I vote to only partially grant the petitions as I find that only a part of E.O. No. 2 is
unconstitutional, i.e., insofar as it unduly expands the scope of midnight
appointments under Section 15, Article VII of the 1987 Constitution.
I find the rest of the provisions of E.O. No. 2, particularly, Sections 1 (b) and (c) in
relation to Section 2, to be valid; the presumption of constitutionality remains since
the petitioners did not squarely question the constitutionality of these provisions
before the Court. In fact, even if the issue had been raised, none of the petitioners
showed that they have the legal standing to question their validity since the
petitioners are admittedly appointees of the previous President and not mere
appointees of a local chief executive. The constitutionality of these provisions would
have to await its resolution in a proper case.
Despite the partial invalidity of E.O. No. 2, I also find that the petitioners’ claims for
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