Can President Noynoy Aquino invoke the constitutional prohibition against “midnight appointments” if he eventually decides to invalidate the more than 170 appointments made by outgoing President Gloria Macapagal-Arroyo when he assumes the presidency at noon of June 30, 2010?

The recent statement of Aquino spokesperson Edwin Lacierda that the Aquino camp finds both malice and bad faith in Arroyo’s rash of appointments since “it intends to stifle the next administration” appears to be laying the legal groundwork for such revocation.

But can Arroyo’s appointments be considered midnight appointments even if they were made or dated before the two-month prohibitory period stated in the Constitution?

According to media reports, from March 1 to March 9, President Arroyo appointed more than 170 persons to important government positions. These appointments allegedly beat the deadline on the 60-day ban on appointments prior to elections, which started on March 10.

But are these appointments legal or are they invalid since they fall under the Constitutional prohibition on midnight appointments?

This question, it appears, will dominate the legal landscape of the country in the coming weeks. Allow me, however, to dissect the various legal principles and doctrines involved in this issue.

The Appointing Power and the Necessity of Acceptance

The power to appoint is essentially an executive function and is thus conferred by the Constitution to the president. The power, however, is not absolute.

One limitation is imposed by Section 15, Article VII of the Constitution which prohibits the practice of midnight appointments by an outgoing president. It states: “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.”

Technically, appointments made before the prohibited two-month period prior to the presidential elections are not midnight appointments. But all appointments require the acceptance of the appointee as this is necessary to complete an appointment.  It is the acceptance by the appointee that renders the appointment effective and entitles him to the enjoyment and benefits of the office.

Arguably, since the appointment is effective only after the person has accepted the post, such acceptance must also be made before the prohibited period. This means that officials who failed to accept their appointments before the March 10 deadline are deemed midnight appointees.

Legality of Midnight Appointments

Those who introduced this prohibition in the 1987 Constitution were apparently aware of the 1962 Supreme Court case of Aytona v. Castillo where the court nullified the 350 appointments made by outgoing President Carlos Garcia on the eve of incoming President Diosdado Macapagal’s inauguration.

In upholding Macapagal’s cancellation of Garcia’s appointments, the Supreme Court ruled: “Nobody will assert that Garcia ceased to be President earlier than at noon of December 30, 1961. But it is common sense to believe that after the proclamation of President Macapagal, (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.”

In its ruling, the Supreme Court admonished Garcia that “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.”

While the appointments were issued by Garcia at the time when he was still President, the Supreme Court ruled in favor of Macapagal on the grounds that Garcia exercised his constitutional power of appointment with “an abuse of presidential prerogatives” and with the “mere partisan effort to fill all vacant positions irrespective of fitness and other conditions” for the purpose of depriving “the new administration of an opportunity to make the corresponding appointments.”

The high tribunal stressed that “the filling up of vacancies in important positions if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications may undoubtedly be permitted.”

In other words, an outgoing president may still issue appointments at the onset of the prohibited period provided these are few and spaced, thus assuring that careful deliberation was made on the need for such appointments.

Applicability of the Prohibition on Midnight Appointments

In the case of the appointments made by Pres. Arroyo from March 1 to March 9, the rationale of the ruling in the Aytona case can be the basis for the cancellation by President-elect Aquino of Arroyo’s appointments.

There is no question that President Arroyo can still exercise her power of appointment before March 10, 2010.  However, Arroyo’s prerogatives as President leading to the two-month prohibitory period against midnight appointment “is no more than that of a care-taker administration” tasked to prepare for the orderly transfer of authority to the next president.

Therefore, if it can be shown that her appointments were also attended with similar, if not identical, “extraordinary circumstances” as in Aytona, then her appointments can also be nullified by the new president.

At President Garcia did in Aytona vs. Castillo, it is clear that President Arroyo exercised her power of appointment in “abuse of presidential prerogatives” and with the “mere partisan effort to fill all vacant positions irrespective of fitness and other conditions” for the purpose of depriving “the new administration of an opportunity to make the corresponding appointments.”

We should not countenance the selfish and self-serving motive of an outgoing president of depriving her successor of the opportunity to make his own appointments and be able to pursue his own programs of government. An outgoing president should never exercise the power of appointment unfairly or arbitrarily, or in violation of the adage that a public office is a public trust. Such power should not be exercised in a manner that is harsh, oppressive, vindictive or done out of malice or spite.

Even if Arroyo’s appointments were made before March 10 deadline, they still fall under the prohibition on midnight appointments because of the “extraordinary circumstances” present – that they were made to contravene the very rationale behind the constitutional injunction against midnight appointments.

It is clear that the principal intent and spirit of the Constitutional ban against midnight appointments is to preclude an outgoing president from perpetuating his influence beyond his mandated term.

A midnight appointment can be used as a potent tool to obtain the loyalty of the appointees. Such loyalty is a vital component should Mrs. Arroyo desire to continually promote and protect her selfish political interests.

Furthermore, the prohibition on midnight appointments should serve to ensure that President-elect Aquino will be guaranteed a free hand in appointing the officials of the various government agencies under his administration.

I therefore submit that there is sufficient legal basis to challenge President Arroyo’s appointments, even if they were made before the two-month prohibitory period on midnight appointments.

While she remains President until noon of June 30, Mrs. Arroyo’s prerogative is by no means absolute, as it remains subject to pertinent laws and regulations, as well as the requisites for the issuance and completion of a valid appointment.

We must remember that even if President Arroyo’s rash of appointments beat the March 10 deadline, the Supreme Court has upheld, as in Aytona, that the observance of strict legality of these appointments must ultimately yield to “fairness, justice and righteousness” in the face of exceptional circumstances.