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ATTY. CHELOY E. VELICARIA- GARAFIL, Petitioner, v. OFFICE OF THE PRESIDENT AND HON.
SOLICITOR GENERAL JOSE ANSELMO I. CADIZ, Respondents.
Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President Macapagal-
Arroyo) issued more than 800 appointments to various positions in several government offices.
The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads
Two months immediately before the next presidential elections and up to the end of his term, a President or
Acting President shall not make appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety.ch
Thus, for purposes of the 2010 elections, 10 March 2010 was the cut-off date for valid appointments and the
next day, 11 March 2010, was the start of the ban on midnight appointments. Section 15, Article VII of the 1987
Constitution recognizes as an exception to the ban on midnight appointments only temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public safety.
None of the petitioners claim that their appointments fall under this exception.
Appointments
The paper evidencing Atty. Velicaria-Garafils appointment as State Solicitor II at the OSG was dated 5 March
2010.There was a transmittal letter dated 8 March 2010 of the appointment paper from the Office of the
President (OP), but this transmittal letter was received by the Malacaang Records Office (MRO) only on 13
May 2010. There was no indication as to the OSGs date of receipt of the appointment paper. On 19 March
2010, the OSGs Human Resources Department called up Atty. Velicaria-Garafil to schedule her oath-taking.
Atty. Velicaria-Garafil took her oath of office as State Solicitor II on 22 March 2010 and assumed her position
on 6 April 2010.
The paper evidencing Atty. Venturanzas appointment as Prosecutor IV (City Prosecutor) of Quezon City
was dated 23 February 2010. It is apparent, however, that it was only on 12 March 2010 that the OP, in a letter
dated 9 March 2010, transmitted Atty. Venturanzas appointment paper to then Department of Justice (DOJ)
Secretary Alberto C. Agra. During the period between 23 February and 12 March 2010, Atty. Venturanza,
upon verbal advice from Malacaang of his promotion but without an official copy of his appointment paper,
secured clearances from the Civil Service Commission (CSC),Sandiganbayanand the DOJ. Atty. Venturanza
took his oath of office on 15 March 2010, and assumed office on the same day.
The paper evidencing Rosquitas appointment as Commissioner, representing Region I and the Cordilleras, of
the NCIP was dated 5 March 2010. Like Villanueva, there was no transmittal letter of the appointment paper
from the OP. Rosquita took her oath of office on 18 March 2010.
The paper evidencing Atty. Tamondongs appointment as member, representing the private sector, of the
SBMA Board of Directors was dated 1 March 2010. Atty. Tamondong admitted that the appointment paper was
received by the Office of the SBMA Chair on 25 March 2010 and that he took his oath of office on the same
day. He took another oath of office on 6 July 2010 as an act of extra caution because of the rising crescendo of
noise from the new political mandarins against the so-called midnight appointments
On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office as President of the
Republic of the Philippines. On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing, and
revoking appointments issued by President Macapagal-Arroyo which violated the constitutional ban on
midnight appointments.
ISSUE
1) Whether petitioners appointments violate Section 15, Article VII of the 1987 Constitution, and
2) Whether EO 2 is constitutional.
HELD
THE Supreme Court affirmed the Executive Order issued by President Benigno Aquino III against the midnight
appointments made by his predecessor, Gloria Macapagal-Arroyo..
In the matter of Cheloy Velicaria-Garafil vs Office of the President, Dindo Venturanza vs the Office of the
President, Irma Villanueva and Francisca Rosqueta vs Court of Appeals and Office of the President and Edie
Tamondong vs Court of Appeals and Executive Secretary, the Court voting 8-6 dismissed the petition and
declared as null and void the appointments of petitioners to the post they occupied, high courts Information
Chief Atty. Theodore Te said at a press conference.
The high court said Executive Order No. 2 issued by Aquino is constitutional in its entirety, especially as to its
definition of midnight appointments and its recall, revocation and withdrawal of midnight appointments.
EO No. 2, which was issued on Aug. 4, 2011, recalled, withdrew and revoked about 800 appointments made by
Arroyo two months before the 2010 elections.
Among these appointments are of that of the petitioners.
Velicaria-Garafil was appointed State Solicitor II at the Office of the Solicitor General while Venturanza was
appointed as city prosecutor of Quezon City. On the other hand, Villanueva was appointed as Administrator for
Visayas of the Board of Administrators of the Cooperative Development Authority while Rosqueta was named
Commissioner of the National Commission of Indigenous Peoples. Tamondong was appointed member of the
Board of Directors of the Subic Bay Metropolitan Authority.
Under Section 15, Article VII of the 1987 Constitution, two months immediately before the next presidential
elections and up to the end of his term, a President or acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety.
For purposes of the 2010 polls, the high court said the cut-off date for valid appointments was March 10, 2010
while March 11, 2010 was the reference date for midnight appointments.
About the petitioners, the high court said they failed to provide proof showing that their appointments were made
prior to March 11, 2010.
The petitioners have failed to show their compliance with all four elements of a valid appointment. They cannot
prove with certainty that their appointment papers have indeed been issued before the period covered by the
appointment ban, the high court said.
The high court also took note of the fact that petitioners themselves admitted that they took their oaths of office
during the period of the appointment ban.
Referred to the Court En Banc by the Chief Justice are the appointments signed by His Excellency the President
under the date of March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the
Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively. The
appointments were received at the Chief Justice's chambers on May 12, 1998. The referral was made in view of
the serious constitutional issue concerning said appointments arising from the pertinent antecedents.
The issue was first ventilated at the meeting of the Judicial and Bar Council on March 9, 1998. The meeting had
been called, according to the Chief Justice as Ex Officio Chairman, to discuss the question raised by some
sectors about the "constitutionality of *** appointments" to the Court of Appeals, specifically, in light of the
forthcoming presidential elections. Attention was drawn to Section 15, Article VII of the Constitution reading
as follows:
"SEC 15. Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or endanger public safety."
Your Excellency, Section 15 of Article VII imposes a direct prohibition on the President: he "shall not make
appointments" within the period mentioned, and since there is no specification of which appointments are
proscribed, the same may be considered as applying to all appointments of any kind and nature. This is the
general rule then, the only exception being only as regards "executive positions" as to which "temporary
appointments" may be made within the interdicted period "when continued vacancies therein will prejudice
public service or endanger public safety." As the exception makes reference only to "executive" positions, it
would seem that "judicial" positions are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the Supreme Court "shall be filled
within ninety days from the occurrence thereof." Unlike Section 15, Article VII, the duty of filling the vacancy
is not specifically imposed on the President; hence, it may be inferred that it is a duty shared by the Judicial and
Bar council and the President.
Had the framers intended to extend the prohibition contained in Section 15,Article VII to the appointment of
Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous
ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section
15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII
itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making appointments within two months before the next
presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the
Members of the Supreme Court. Section 14, Section 15, and Section 16 are obviously of the same character, in
that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only
to appointments within the Executive Department renders conclusive that Section 15 also applies only to the
Executive Department. This conclusion is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e. that every part must be considered together with the other parts,
and kept subservient to the general intent of the whole enactment. It is absurd t assume that the framers
deliberately situated Section 15 between Section14 and Section 16, if they intended Section 15 to cover all
kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the
framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most
likely within Section 4 (1) thereof
Recess. Thirty days before the next regular sessions, the Congress shall have its compulsory recess or adjournment.
But each House can adjourn for a voluntary recess provided that the consent of the other House is obtained if the
adjournment is for three days or to any other place than that to which the two Houses are sitting.
Adjournment
A putting off or postponing of proceedings; an ending or dismissal of further business by a court, legislature, or public offici
aleither temporarily or permanently.
If an adjournment is final, it is said to be sine die, "without day" or without a time fixed to resume the work. An adjournmen
t isdifferent from a recess, which is only a short break in proceedings.
In legislatures, adjournment officially marks the end of a regular session. Both state and federal lawmakers vote to determ
inewhen to adjourn. The exact timing depends upon multiple factors such as work load, election schedules, and the level
ofcomity among lawmakers. Because a session can end with unfinished legislative business, adjournment is commonly us
edas a means of political leverage in securing or delaying action on important matters. In the U.S. Congress, where the si
ngleannual legislative session usually ends in the fall, the president may call an adjournment if the House and Senate can
notagree upon a date.
The President shall have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.