Sadly, they never tendered their resignations, which would have spared us all - U.P. alumni, students, staff faculty and simple taxpayer alike - a "long-drawn out and unseemly struggle" between the U.P. Administration (who has railroaded the retention of the three (3) Malacañang "midnight" regents by sneaking in their appointments in the last dwindling days of the Arroyo administration) and the different sectors in the U.P. System who would want a more democratic process of consultation in nominating to the President fair and independent minded individuals who are more than just rubber stamps of the U.P. Administration.
Caught in the middle, of course, is President Aquino who would nevertheless want to make his own decision in choosing whom to appoint without being forced to accept a default scenario where Arroyo appointees remain in the BOR unquestioned and unchallenged.
The time to question and challenge these three (3) Malacañang "midnight" appointees is now; because even though the removal of the three (3) Malacañang "midnight" appointees to the BOR - namely Francis Chua, former Justice Abraham Sarmiento and Nelia Gonzalez took effect on July 30, 2010 when President Aquino signed Executive Order (E.O.) No. 2 (to see the actual scanned copy of E.O. No. 2 please click on this link: http://www.gov.ph/2010/07/30/executive-order-no-2/), nothing prevents the U.P. Administration from simply renominating the three (3) regents now that vacancies exist. We are pasting the text of E.O. No. 2 below for easy reference.
The University of the Philippines Charter of 2008 (R.A. 9500) (http://www.lawphil.net/statutes/repacts/ra2008/ra_9500_2008.html) defines the composition of the BOR in the following manner:
"SEC. 12. The Board of Regents. -
(1) Composition - The Governance of the national university is vested in a board of regents known as the ":Board of Regents of the University of the Philippines System," hereinafter referred to as the ":Board,": composed of:
(a) The Chairperson of the Commission on Higher Education as Chairperson;
(b) The President of the University of the Philippines System as Co-Chairperson;
(c) The Chairperson of the Senate Committee on Education, Arts and Culture;
(d) The Chairperson of the House Committee on Higher and Technical Education;
(e) The President of the U.P. Alumni Association, to serve as Alumni Regent during his or her incumbency in that position;
(f) One Faculty Regent representing all teaching personnel, chosen in accordance with the rules and qualification set by the constituent university councils to serve for a term of two (2) years;
(g) One Student Regent, to serve for a term of one (1) year, chosen by the students from their ranks in accordance with rules and qualifications approved in a referendum by the students;
(h) One Staff Regent representing the full-time permanent research, extension, and professional staff (REPS) and administrative personnel, and chosen by them from their ranks in accordance with the rules and qualifications set by their duly recognized organizations, to serve for a term of two (2) years; and
(i) Three other Regents who have distinguished themselves in their professions or fields of specialization, to be appointed by the President of the Philippines, considering the recommendation of the Board. At least two (2) of these Regents should be alumni. All these Regents shall each serve for a term of two (2) years: Provided, That the Regents holding office as members of the Board at the time of the effectivity of this Act shall continue to serve until the expiration of their appointments as provided in Executive Order No. 204-A, issued by the President of the Philippines on July 15, 1987 (underscoring supplied by the Diliman Diary).
From Section 12 of R.A. 9500, it is clear that President Aquino may consider the recommendation of the BOR; but this becomes a conflict of interest if the majority of the BOR, including the three (3) Malacañang "midnight" appointees voting in a "holdover" or "acting" capacity recommend themselves to President Aquino to replace themselves. It is very clear to us in the Diliman Diary that President Aquino may consider any such BOR recommendation, but is not limited or bound by it.
The Diliman Diary therefore makes another one of its periodic citizen journalist interventions by declaring the floor open for nominations by the Filipino People for the positions of Malacañang regents, considering the qualifications as set forth in R.A. 9500. Anybody, including individuals and organizations may send their nominations directly to:
Hon. Paquito N. Ochoa, Jr.
Bonifacio Premier Guest House
Malacañang, City of Manila
We stress to our readers that it is President Aquino's prerogative in E.O. No. 2 to consider all nominations for the three (3) vacancies in the U.P. Board of Regents whom he may appoint under R.A. 9500. We do not believe that these nominations should solely emanate from the back rooms of Quezon Hall in U.P. Diliman . Additionally, E.O. No. 2 considers "midnight" appointments to be such if they were "made on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010" (underscoring supplied). These conditions are therefore satisfied, the records would show that on March 5, 2010, Gonzalez was appointed by then President Arroyo as member of the U.P. Board of Regents for a term of two (2) years. Chua was also appointed on February 18, 2010 by then President Arroyo as member of the U.P. Board of Regents for a term of two (2) years. On the other hand, Justice Sarmiento was appointed as member of the U.P. Board of Regents on March 5, 2010 and for a term to expire on September 29, 2010 (Please see Diliman Diary, March 23, 2010: http://tinyurl.com/37np754). The three (3) Malacañang "midnight" appointees took their oaths of office on May 17, 2010. They are therefore, "midnight" appointees as defined under E.O. No. 2 and are deemed automatically removed although the "midnight" appointees may challenge their removals in court if they wish to.
We are also pasting E.O. No. 2 below for the easy reference of our readers:
EXECUTIVE ORDER NO. 2
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER PURPOSES.
WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that “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 of endanger public safety.”;
WHEREAS, in the case of “In re: Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and Hon, Vallarta as Judges of the Regional Trial Court of Branch 62 of Bago City and Branch 24 of Cabanatuan City, respectively” (AM no. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to mean that the President is neither required to make appointments nor allowed to do so during the two months immediately before the next presidential elections and up to the end of her term. The only known exceptions to this prohibition are (1) temporary appointments in the executive positions when continued vacancies will prejudice public service of endanger public safety and in the light of the recent Supreme Court decision in the case of, De Castro, et . al. vs. JBC and PGMA G.R No. 191002, 17 March 2010, (2) appointments to the Judiciary;
WHEREAS, Section 261 of the Omnibus Election Code provides that:
“Section 261. Prohibited Acts. – The following shall be guilty of an election offense:
(g) Appointments of new employees, creation of new position, promotion, or giving salary increases. – During the period of forty-five days before a regular election and thirty days before a special election.
(1) Any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority to the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed in the case of urgent need:
Provided, however, that notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.
(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations.”;
WHEREAS, it appears on record that a number of appointments were made on or about 10 March 2010 in complete disregard of the intent and spirit of the constitutional ban on midnight appointment and which deprives the new administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is necessary to uphold the principle that appointments to the civil service must be made on the basis of merit and fitness, it is imperative to recall, withdraw, and revoke all appointments made in violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the Constitution as President of the Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. – The following appointments made by the former President and other appointing authorities in departments, agencies, offices, and instrumentalities, including government-owned or controlled corporations, shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010, except temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority.
(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the period o f 45 days prior to the May 10, 2010 elections in violation of Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. – When necessary to maintain efficiency in public service and ensure the continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC) to perform the duties and discharge the responsibilities of any of those whose appointment has been recalled, until the replacement of the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. – All executive issuances, orders, rules and regulations or part thereof inconsistent with the provisions of this Executive Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. – If any section or provision of this executive order shall be declared unconstitutional or invalid, the other sections or provision not affected thereby shall remain in full force and effect.
SECTION 6. Effectivity. – This Executive order shall take effect immediately.
DONE in the City of Manila, this 30th day of July, in the year Two Thousand and Ten.
(Sgd.) BENIGNO S. AQUINO III
By the President:
(Sgd. ) PAQUITO N. OCHOA, JR.