SolGen rejoinder to Pascual's column

MANILA, Philippines - Much as I admire Mr. Pascual’s advocacies in his Postscript Column, I am compelled to point out the erroneous information he received which led you to decry the supposed denial of due process to OSG employees and the “shabby treatment” they received at the hands of the undersigned in the implementation of E.O. No. 2, titled “Recalling, withdrawing, and revoking appointments issued by the previous administration in violation of the constitutional ban on midnight appointments and for other purposes” (cf. Postscript 8/15/10, PhilSTAR, p. 14).

First, EO No. 2 has solid constitutional underpinning in Section 15, Article VII of the 1987 Constitution, which states that “Two months immediately before the next presidential elections and up to the end of this 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.” It is also anchored on In re Valenzuela (A.M. No. 98-05-01-SC, Nov. 9, 1998) and De Castro v. JBC, et al. (G.R. No. 191002, March 17, 2010).

Second, Section 6, EO No. 2 states that “This Executive Order shall take effect immediately.” The word “shall” is a command, as opposed to “may”, the latter of which vests discretion on the public official concerned. There can be no hemming or hawing regarding the import of Section 6.

Third, your column gives the impression that many at the OSG were given their walking papers. That is not correct. Only seven OSG presidential appointees and a few rank-and-file employees, out of a total of around 500, were affected by EO No. 2. Four reverted to their original positions, including Assistant Solicitor General Nyriam Susan O. Sedillo-Hernandez, who went back to her previous position as Senior State Solicitor. Unfortunately, Assistant Solicitor General Irahlyn Sacupayo-Lariba and three others have no previous positions to return to. Prior to her appointment to the OSG, Atty Lariba was SVP at Security Bank. I ordered the rehiring last Friday, August 13, 2010 of the executive assistant of ASG Nyriam Hernandez, in view of her lack of civil service eligibility and she will be given a temporary appointment at the OSG. This should absolutely debunk the notion that the new Solicitor General is uncaring and insensitive. The other executive assistant went back to her old position as well. All in all therefore, there were only 9 who were affected by EO 2 consisting of 7 lawyers and 2 non legal staff.

Fourth, there was no violation of the right of due process of the affected OSG officials and employees. To set the records straight, the affected personnel took their oaths of office during the prohibited period set under Section 15, Article VII of the 1987 Constitution. The clear wording of EO 2 also states that those who took their oaths of office on March 11, 2010 onwards are midnight appointees and their appointments are therefore void from the very beginning. Otherwise stated, the affected OSG officials and employees can only claim that their due process rights were violated if their appointments were valid and not void from the very beginning and that their right to security of tenure had already been vested on them. Thus, President Benigno S. Aquino lll had even urged midnight appointees to resign.

Fifth, it is not true that EO 2 was not explained to the affected lawyers and employees. While EO 2 was explained to the Assistant Solicitor Generals on August 5, it was likewise discussed with the other affected lawyers and personnel on August 6, and all were allowed to work and were paid salaries on the said day.

Finally, there are already cases pending before the Supreme Court questioning the validity of EO 2 and EO 3. We assure everybody that the Government will comply with the ruling of the Supreme Court on these matters.