MANILA -- The Supreme Court on Tuesday gave Malacañang 10 days to comment on two separate petitions questioning the legality of Executive Orders 2 and 3 issued by President Benigno Aquino III.

Court Administrator Jose Midas Marquez said the Palace, through Executive Secretary Paquito Ochoa, was ordered to answer the complaint filed by lawyers Eddie Tamondong and Jose Arturo de Castro.

Updates on President Benigno Aquino III's presidency

Marquez said after the submission of the comment, the court will issue a status quo ante or a temporary restraining order to the petitioners.

Tamondong is the acting director of the Subic Bay Metropolitan Authority (SBMA), while de Castro is an assistant secretary of the Department of Justice (DOJ).

Executive Order (EO) 2 recalls, withdraws and revokes the appointments issued by then President Gloria Macapagal-Arroyo in violation of the prohibition on appointments during election period under Section 15, Article 7 of the Constitution.

EO 3, on the other hand, revokes EO 883 issued by Arroyo on May 28, 2010, or a month before the assumption of the new President.

EO 883 authorizes the Career Executive Service Board (CESB) to initially confer on lawyers occupying legal positions in the government service the rank of career executive service officer (CESO) III, equivalent to the rank of a regional director.

De Castro and Tamondong are among the 977 appointees of Arroyo who benefited under her EO 833.

The EO 833 covered those appointed on or after March 11, 2010, those appointed prior to March 11 but took their oaths and assumed office during a 45-day ban under the Omnibus Election Code.


De Castro and Tamondong, in their respective pleadings filed on Monday, asked for the issuance of a temporary restraining order or preliminary injunction on the ground that Aquino’s issuances are "unconstitutional and usurp the function of the judicial branch."

De Castro said EO 2 violates Section 2b, Article IX of the Constitution by depriving civil service employees of security of tenure and summarily dismissing them without just cause and without compliance with the cardinal requirements of due process.

He said in issuing EO 3, Malacañang "encroaches and usurps judicial functions by declaring EO 883 null and void -- an act that impinges on the separation of powers allocating to the (Supreme Court) the power to adjudicate the illegality of executive orders."

Tamondong, in his petition, argued that the issuance of EO 2 "demonstrates an arbitrary misuse of executive power."

He also assailed the present administration’s alleged "twin policy of hate and vindictiveness."

'Attempt to abuse the law'

Justice Secretary Leila de Lima said the issuance of EO 883, coming after the massive electoral defeat of candidates allied with the previous administration, “is a clear attempt to circumvent the law on career officers and to abuse the law.”

In a statement, De Lima said the Office of the Solicitor General (OSG), which is under the supervision of the DOJ, is now reviewing the De Castro and Tamondong petitions since it is likely that the OSG would be asked by the Supreme Court for its position on the matter.

She also defended the stance of the Aquino administration that former and present government officials must continue to live by the constitutional principle that “public office is a public trust,” and that government service is a privilege and not a right.

“The issue on midnight appointments is settled -- the intent of such a ban is for the outgoing appointing power not to abuse its office by the last-minute placement of personnel in major departments and agencies, and to leave to the incoming appointing power the discretion to appoint key officials who believe in the new administration’s vision and mission of good governance,” De Lima said in a statement.

Palace welcomes petition

Malacañang, on the other hand, remained confident of the constitutionality of EO 2, revoking the supposed "midnight appointments" of Arroyo as it earlier dared affected employees to question the directive before the court.

In an interview, Presidential spokesperson Edwin Lacierda said the legal counsel of the President is studying the issues raised by Tamondong and De Castro.

"We believe that the law is sound; the EO is sound and it will stand constitutional question before the Supreme Court," he said.

He said the President also tasked De Lima to look into the background of De Castro to know his ties with the previous administration.

“She was not informed of the decision of this assistant secretary to file complaint. So we’re looking into his status right now,” Lacierda said. (JCV/Jill Beltran/Sunnex)