Midnight appointments

President Duterte’s new appointees to the Commission on Elections (Comelec) have drawn intense scrutiny, not least because of the new commissioners’ urgent task at hand — the holding of crucial elections in less than two months that could decide the country’s fate in the next six years. How fair and impartial will they be amid the highly charged partisan politics buffeting the campaign season? How will they vote in the pending disqualification cases against survey frontrunner Ferdinand Marcos Jr., whose running mate is the daughter of the man who has appointed them?

The commissioners’ controversial backgrounds have not helped any in tamping down the criticisms that greeted the President’s recent appointment of Comelec chair Saidamen Pangarungan, and commissioners Aimee Neri and George Erwin Garcia, following the retirement last month of then chair Sheriff Abbas and commissioners Antonio Kho Jr. and Rowena Guanzon.

“At this point, we ask the three people: what is your track record in election advocacy or lawyering?’’ election watchdog Kontra Daya asked, noting that the credentials of Pangarungan were wanting, while Neri had “little to no clean election advocacy or lawyering track record.’’ Lawyer Ferdinand Topacio, in fact, reminded the public that his client, convicted drug lord Herbert Colanggo, had allegedly given P10 million to Neri, then assistant secretary at the Department of Justice (DOJ), to “fix’’ a robbery case against him. Since the DOJ did not bother to investigate the charge against Neri, this case is worth revisiting with her appointment to the Comelec.

As for Garcia, who lawyered for Ferdinand Marcos Jr. in his failed 2016 election protest against Vice President Leni Robredo, people have asked how impartial he’s bound to be, given the many pending disqualification cases against his former client. Garcia had also represented three others currently running for the presidency—Senators Panfilo Lacson and Manny Pacquiao, and Manila Mayor Isko Moreno Domagoso.

To be fair, Garcia has formally asked the Comelec clerk of court to inhibit him from all cases involving his past clients. He also said that he did not immediately assume his appointment to avoid taking part in the cases against Marcos.

But all these furor against the new commissioners might be for naught, if their appointments are not confirmed soon by the Commission on Appointments (CA). As Sen. Franklin Drilon pointed out, unless President Duterte calls Congress to a special session, the CA will only convene when Congress resumes sessions on May 23.

“Since these are all ad interim appointments, they would all lapse if the CA does not act on them when Congress adjourns,’’ Drilon said. He noted that when Congress resumes sessions on May 23, “there (would) already be a new President-elect, who can influence the vote and action of the CA on these ad interim appointments.’’

“In other words, the continued stay of these appointees would realistically depend on the new President-elect,’’ he added.

This holds true for other last-minute presidential appointments—including that of Karlo Nograles as chair of the Civil Service Commission, and Commission on Audit chair Rizalina Justol. Justol’s appointment to the Commission on Audit was particularly troubling. As longtime city accountant for then Davao City Mayor Rodrigo Duterte, Justol and Mr. Duterte were respondents in a plunder complaint filed at the Ombudsman in 2010 for the alleged misappropriation of P11 million from the city’s special education fund. Talk about the fox guarding the henhouse!

Since January, Mr. Duterte has appointed a dozen new officials, including seven appointed just this month, a few days shy of them being midnight appointments.

The Constitution explicitly bars the President from making appointments two months immediately before the next presidential elections and up to the end of his term. The Omnibus Election Code also deems it an election offense if appointments were made 45 days before a regular election.

These near midnight appointments of Mr. Duterte would likely suffer the same fate as those appointed by President Gloria Macapagal Arroyo back in 2010. The Philippine Center for Investigative Journalism had reported that Arroyo made 200 appointments just days before the March 10 ban, and a final batch of 13 appointments after the May 10 elections.

President Benigno “Noynoy’’ Aquino, in Executive Order No. 2 issued on July 30, 2010 which effectively defined midnight appointments, promptly revoked these appointments. The EO stated that “… 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, which deprives the new administration of the power to make its own appointments…’’

The next administration certainly has the prerogative to start on a clean slate, and that means weeding out the Duterte appointees in vital constitutional bodies that have questionable credentials and shady reputations.