President Diosdado Macapagal revoked all 350 appointments made by his predecessor Carlos P. Garcia the very next day after being sworn into office before his adoring family, which included 14-year-old Gloria.

Last week, the Supreme Court cited the ruling which upheld what Macapagal did 49 years ago. In the same ruling penned by Associate Justice Lucas Bersamin, he said:

the appointment of the Chief Justice is any President’s most important appointment”

And then Bersamin promptly and inexplicably told an exiting president she could continue to wield that “most important” power, even if by doing so the next president could be denied the chance of ever exercising that power. If Arroyo appoints someone who will only reach the retirement age of 70 years old after six years, her successor will not even get to use that presidential power that Bersamin deemed “most important”.

The Supreme Court has turned a blind eye on the reality that Pres. Arroyo has already made “that most important appointment” not just once but twice – with her appointments of Artemio Panganiban and Reynato Puno to the post of Chief Justice.

If she insists on making a third “most important” appointment, how greedy is that?

How Gloria Arroyo’s father did it

I believe if she does that, her successor can well justify doing what President Diosdado Macapagal did. Under the 1935 Constitution, Macapagal took his oath as president on December 30, 1961. The next day, he issued Administrative Order No. 2 revoking all the appointments his predecessor Garcia had made starting December 14, or the day following his proclamation by Congress as the President-elect.

Among those Macapagal scrapped was Garcia’s Dec. 29 appointment of Dominador R. Aytona as Central Bank governor. But Aytona refused to budge. On Jan. 1, 1962, Macapagal appointed Andres V. Castillo to the same post. Castillo then ordered security to bar Aytona from the bank premises. (And I thought bankers were staid.)

This prompted Aytona to sue Castillo in court and the result is the case of Aytona versus Castillo which caused the Supreme Court to issue a landmark ruling banning “midnight appointments” and upholding Macapagal’s action.

It must be noted that the 1935 Constitution contained no explicit prohibition against a sitting president making appointments in the twilight of his presidency. The 1935 Constitution merely stated:

The President shall have the power to make appointments during the recess of the Congress of the Philippines, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress of the Philippines.

Thus, Macapagal’s Administrative Order No. 2 was unprecedented. But it was upheld by the Supreme Court. Last week, this nearly half a century-old ruling in the case of Aytona v. Castillo was cited by the Supreme Court decision giving Pres. Arroyo the go-ahead to appoint her third Chief Justice.

By the way, if you think I’m pulling all these out of a hat, I’m not. I’m extracting it from pages 145 to 149 of the “Political Law Reviewer” authored by the late Senate President Neptali Gonzales on June 10, 1965. When I was covering the Senate as a beat reporter, his colleagues deferred to him on constitutional issues.

The book came from my late father, University of the Philippines law professor Jose F. Espinosa, who unwittingly taught me law at the dining table. (You could say, the cakes I baked for him was my form of tuition.)

And why the next president can do it, too

Now you might ask, of what use is a 45-year-old book citing an ancient case on our present-day problem? I believe it’s very important for the following reasons: First, the Supreme Court stated last week in its ruling that the Aytona v. Castillo case was what prompted the framers of the 1986 Constitution to enshrine the ban on midnight appointments. In the majority decision he penned, Justice Bersamin explained:

The second type of appointments prohibited by Section 15, Article VII consists of the so-called “midnight” appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a “caretaker” administrator whose duty was to “prepare for the orderly transfer of authority to the incoming President.”

Justice Bersamin then quoted from the original 1960s court decision:

“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 appointee’s qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.”

Secondly, Justice Bersamin’s decision dramatically reversed a later Supreme Court ruling which voided the appointment in 1998 of two judges – Mateo A. Valenzuela and Placido B. Vallarta – by President Fidel Ramos during the banned 1998 election campaign period.

But the ruling did not reverse, and in fact upheld, the Aytona v. Castillo decision. Since the latter case was triggered by Pres. Macapagal’s mass scrapping of Garcia’s appointments, it is therefore logical to assume that the present-day Supreme Court did not bar the next president from doing what Macapagal did.

The next President could well argue that Arroyo had abused her presidential prerogative since she has already appointed two Chief Justices and allowing her to appoint a third one could deny her successor the right to exercise the same prerogative.

In Arroyo’s father’s case, he resented the fact that his predecessor had continued to sign appointments even after he was proclaimed the winner.

In the case of Arroyo’s successor, the post of Chief Justice will only become vacant on May 17, or a week after the May 10 election.

Now Smartmatic’s automation contract requires them to post a winner for the presidency 48 hours after polls close on May 10, a Smartmatic official recently told FOCAP (Foreign Correspondents Association of the Philippines), of which I’m a member.

And so by the time May 17 rolls around, we should know the name of the new president. So why is there such indecent haste to have a Chief Justice-in-waiting even before election day?

And oh, by the way, I have this feeling that many, many other appointments are even now being signed and issued by Arroyo in the dying days of her presidency. In Pres. Garcia’s case, he was in such a mad rush to sign appointment papers that he made mistakes. For instance, the late Gonzales wrote, “a woman appointed judge was designated ‘Mr.’ and a man was designated ‘Madam.’ ”

It would do well for the next president to review all of Arroyo’s “midnight” appointments down the line.