Velicaria-Garafil vs. Office of the President

A valid appointment requires the concurrence of four elements: (1) authority to appoint and evidence of the exercise of such authority; (2) transmittal of the appointment paper and evidence thereof; (3) a vacant position at the time of appointment; and (4) receipt of the appointment paper and acceptance of the appointment by the appointee. Appointments made during the constitutional ban period under Section 15, Article VII of the 1987 Constitution are void unless they constitute temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety.

Prior to the May 10, 2010 presidential elections, then President Gloria Macapagal-Arroyo issued over 800 appointments to various government positions. Section 15, Article VII of the 1987 Constitution prohibits the President from making appointments two months immediately before the next presidential elections and up to the end of his term, except for temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. For the 2010 elections, the ban took effect on March 11, 2010. On July 30, 2010, President Benigno S. Aquino III issued Executive Order No. 2 recalling, withdrawing, and revoking appointments made by the previous administration in violation of this constitutional ban.

• Nature of the Cases: Four consolidated cases involving appointees of former President Macapagal-Arroyo: Atty. Cheloy E. Velicaria-Garafil (State Solicitor II at the Office of the Solicitor General), Atty. Dindo G. Venturanza (Prosecutor IV of Quezon City), Irma A. Villanueva (Administrator for Visayas of the Cooperative Development Authority), Francisca B. Rosquita (Commissioner of the National Commission of Indigenous Peoples), and Atty. Eddie U. Tamondong (Member of the Board of Directors of the Subic Bay Metropolitan Authority).
• The Constitutional Ban: Section 15, Article VII of the 1987 Constitution prohibits presidential appointments two months immediately before the next presidential elections. For the 10 May 2010 elections, the ban commenced on 11 March 2010.
• The Appointments: All petitioners' appointment papers were dated before 11 March 2010 (Velicaria-Garafil: 5 March 2010; Venturanza: 23 February 2010; Villanueva: 3 March 2010; Rosquita: 5 March 2010; Tamondong: 1 March 2010). However, transmittal letters from the Office of the President were dated on or after 11 March 2010, and receipt by the Malacañang Records Office (MRO) or the appointing agencies occurred during the ban period (e.g., Velicaria-Garafil's transmittal was received by MRO on 13 May 2010; Venturanza's appointment was transmitted 9 March 2010 and received 12 March 2010).
• Assumption of Office: Petitioners took their oaths of office and assumed their positions on dates falling during the ban period (Velicaria-Garafil: oath on 22 March 2010, assumed office 6 April 2010; Venturanza: oath and assumption 15 March 2010; Villanueva: oath 13 April 2010; Rosquita: oath 18 March 2010; Tamondong: oath 25 March 2010).
• Executive Order No. 2: Issued on 30 July 2010 by President Aquino, EO 2 defined midnight appointments as those made on or after 11 March 2010, or those made prior but accepted/oath taken/assumed office on or after 11 March 2010, and recalled, withdrew, and revoked such appointments.
• Effect of EO 2: Petitioners were removed from office, had their salaries withheld, or were directed to relinquish their positions to officers-in-charge designated under EO 2.

• Completion of Appointment: Petitioners argued that their appointments were valid because the appointment papers were signed and dated by the President before 11 March 2010, placing them outside the coverage of the constitutional ban.
• Constitutionality of EO 2: EO 2 is unconstitutional as it violates the separation of powers, the constitutional protection of civil servants' security of tenure, and constitutes undue legislative interference by the Executive.
• Definition of Appointment Process: Petitioners maintained that an appointment is complete upon the President's signing and transmittal of the appointment paper, and that acceptance by the appointee is merely a condition precedent to assumption of office, not a component of the appointment itself.
• Due Process: The revocation of their appointments without notice and hearing violated their right to due process and security of tenure.

• Void Ab Initio: Respondent Office of the President countered that the appointments were void ab initio as they were made in violation of Section 15, Article VII. An appointment is a process requiring completion of all steps (signing, transmittal, receipt, acceptance) before the ban takes effect.
• Constitutionality of EO 2: EO 2 is a valid exercise of executive power to implement Section 15, Article VII and is consistent with the precedent set in Aytona v. Castillo.
• Preventing Abuse: The requirement of acceptance as part of the appointment process prevents the evil of antedating appointment papers to circumvent the constitutional ban.
• Procedural Defect (G.R. No. 209138): Villanueva and Rosquita improperly filed a Petition for Certiorari under Rule 65 instead of an appeal under Rule 45, and filed it out of time.

• Midnight Appointments: Whether the petitioners' appointments violate Section 15, Article VII of the 1987 Constitution.
• Constitutionality of EO 2: Whether Executive Order No. 2 is constitutional.
• Procedural Compliance: Whether the petition in G.R. No. 209138 was properly filed.

• Procedural Compliance: The petition in G.R. No. 209138 was dismissed for being filed under Rule 65 (certiorari) instead of Rule 45 (appeal), and for being filed out of time (filed 7 October 2013, beyond the 15-day reglementary period from the CA Decision dated 28 August 2013).
• Midnight Appointments: The appointments were void. Section 15, Article VII prohibits appointments made during the two-month period before presidential elections. An appointment is a process consisting of: (1) signing by the President; (2) transmittal (preferably through the MRO); (3) receipt by the appointee; and (4) acceptance (oath/assumption). All elements must concur before the ban. The dates of receipt by the MRO established that transmittal occurred during the ban, and petitioners admitted taking their oaths during the ban.
• Constitutionality of EO 2: EO 2 is constitutional. It merely implements Section 15, Article VII and is consistent with Aytona v. Castillo, which upheld the revocation of mass last-minute appointments made by an outgoing President. The order serves the constitutional purpose of preventing an outgoing President from preempting the appointing power of the successor.

• Four-Element Test for Valid Appointment: A valid appointment requires the concurrence of: (1) authority to appoint and evidence of the exercise of such authority; (2) transmittal of the appointment paper and evidence thereof; (3) a vacant position at the time of appointment; and (4) receipt of the appointment paper and acceptance by the appointee. These elements must concur regardless of when the appointment is made.
• Appointment as Process: An appointment is not merely the signing of the appointment paper but a process that begins with selection and ends with acceptance by the appointee. Acceptance is indispensable to complete the appointment and is evidenced by oath-taking or assumption of office.
• Midnight Appointment Ban (Section 15, Article VII): The President is prohibited from making appointments two months immediately before the next presidential elections and up to the end of his term, except for temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. The purpose is to prevent an outgoing President from continuing to rule indirectly through "midnight" or "last-minute" appointments.
• Effect of Non-Acceptance: Without acceptance, there is no valid appointment, even if the President has signed the appointment paper. An incumbent appointed to another office does not automatically vacate his first office unless he accepts the new appointment.

• "The following elements should always concur in the making of a valid (which should be understood as both complete and effective) appointment: (1) authority to appoint and evidence of the exercise of the authority; (2) transmittal of the appointment paper and evidence of the transmittal; (3) a vacant position at the time of appointment; and (4) receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications."
• "Excluding the act of acceptance from the appointment process leads us to the very evil which we seek to avoid (i.e., antedating of appointments)."
• "The Constitution, with a specific exception, ended the President's power to appoint 'two months immediately before the next presidential elections.' For an appointment to be valid, it must be made outside of the prohibited period or, failing that, fall under the specified exception."

• Aytona v. Castillo, No. L-19313, 19 January 1962, 4 SCRA 1 — Controlling precedent establishing the concept of "midnight or last-minute" appointments and upholding the revocation of such appointments by a successor President; basis for Section 15, Article VII.
• Lacson v. Romero, 84 Phil. 740 (1949) — Established that acceptance by the appointee is the last act needed to make an appointment complete.
• Javier v. Reyes, 252 Phil. 369 (1989) — Reiterated that acceptance is indispensable to complete an appointment.
• Garces v. Court of Appeals, 328 Phil. 403 (1996) — Emphasized that acceptance by the appointee is indispensable to complete an appointment.
• Bermudez v. Executive Secretary, 370 Phil. 769 (1999) — Affirmed that an appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee.
• De Castro v. Judicial and Bar Council, G.R. No. 191002, 17 March 2010 — Recognized the exception for appointments to the Judiciary during the ban period.

• Section 15, Article VII, 1987 Constitution — Prohibits the President from making appointments two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety.
• Section 261(g), Omnibus Election Code (B.P. Blg. 881) — Prohibits appointment of new employees, creation of new positions, promotion, or giving salary increases during the period of forty-five days before a regular election.
• Executive Order No. 2 (30 July 2010) — Recalled, withdrew, and revoked appointments issued by the previous administration in violation of the constitutional ban on midnight appointments.

Maria Lourdes P.A. Sereno (Chief Justice), Presbitero J. Velasco, Jr., Arturo D. Brion, Diosdado M. Peralta, Mariano C. Del Castillo, Martin S. Villarama, Jr., Bienvenido L. Reyes, Estela M. Perlas-Bernabe.

• Arturo D. Brion — Argued that during the prohibited period, an appointment should be viewed in its "narrow sense" as merely the executive act of signing and transmitting the appointment paper, excluding acceptance. Acceptance is necessary only to make the appointment effective (allowing assumption of office), not to complete the appointment itself. Thus, if the President signed and transmitted the appointment before the ban, the appointment is valid even if accepted during the ban. Joined by Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Jose Portugal Perez, and Jose Catral Mendoza.