Summary: Pimentel vs.

Ermita (GR 164978, 13 October 2005)

Pimentel, et al. vs. Ermita, et al.
[GR 164978, 13 October 2005]
En Banc, Carpio (J): 14 concur
Facts: The Senate and the House of Representatives (Congress) commenced their regular session on 26 July 2004.
The Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August 2004.
Meanwhile, President Arroyo issued appointments to Arthur C. Yap (Department of Agriculture, 15 August 2004),
Alberto G. Romulo (Department of Foreign Affairs, 23 August 2004), Raul M. Gonzalez (Department of Justice, 23
August 2004), Florencio B. Abad (Department of Education, 23 August 2004), Avelino J. Cruz, Jr. (Department of
National Defense, 23 August 2004), Rene C. Villa (Department of Agrarian Reform, 23 August 2004), Joseph H.
Durano (Department of Tourism, 23 August 2004), and Michael T. Defensor (Department of Environment and Natural
Resources, 23 August 2004) as acting secretaries of their respective departments. Defensor, et al., took their oath of
office and assumed duties as acting secretaries. On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel),
Edgardo J. Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile), Luisa P. Ejercito-Estrada (Senator
Ejercito-Estrada), Jinggoy E. Estrada (Senator Estrada), Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim
(Senator Lim), Jamby A.S. Madrigal (Senator Madrigal), and Sergio R. Osmea, III (Senator Osmea) filed the
petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary injunction as Senators of the
Republic of the Philippines, to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo
(President Arroyo) through Executive Secretary Eduardo R. Ermita (Secretary Ermita). The petition also sought to
prohibit respondents from performing the duties of department secretaries.
Issue: Whether President Arroyos appointment of Defensor et al. as acting secretaries was constitutional, even
without the consent of the Commission on Appointments while Congress is in session.
Held: The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended
to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in an
office occupied by an alter ego of the President, such as the office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could
assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great
trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President
who her alter ego should be. The office of a department secretary may become vacant while Congress is in session.
Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily
have the Presidents confidence. Thus, by the very nature of the office of a department secretary, the President must
appoint in an acting capacity a person of her choice even while Congress is in session. That person may or may not
be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the
permanent appointee. The law expressly allows the President to make such acting appointment. Section 17, Chapter
5, Title I, Book III of EO 292 states that [t]he President may temporarily designate an officer already in the
government service or any other competent person to perform the functions of an office in the executive branch.
Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the
President deems that person competent. Pimentel, et al. assert that Section 17 does not apply to appointments vested
in the President by the Constitution, because it only applies to appointments vested in the President by law.
Petitioners forget that Congress is not the only source of law. Law refers to the Constitution, statutes or acts of
Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions. Finally, Pimentel,
et al., claim that the issuance of appointments in an acting capacity is susceptible to abuse. They, however, fail to
consider that acting appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title I,
Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as
a way to circumvent confirmation by the Commission on Appointments. In distinguishing ad interim appointments from
appointments in an acting capacity, a noted textbook writer on constitutional law has observed that "Ad-interim
appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon
acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission
on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also
be a way of circumventing the need for confirmation by the Commission on Appointments." The Court find no abuse in
the present case. The absence of abuse is readily apparent from President Arroyos issuance of ad interim
appointments to Defensor et al. immediately upon the recess of Congress, way before the lapse of one year.



Summary: National Amnesty Commission vs. Commission on Audit (GR 156982, 8 September 2004)
National Amnesty Commission vs. Commission on Audit
[GR 156982, 8 September 2004]
En Banc, Corona (J): 12 concur
Facts: The National Amnesty Commission (NAC) is a government agency created on 25 March 1994 by then
President Fidel V. Ramos through Proclamation 347. The NAC is tasked to receive, process and review amnesty
applications. It is composed of seven members: a Chairperson, three regular members appointed by the President,
and the Secretaries of Justice, National Defense and Interior and Local Government as ex officio members. It appears
that after personally attending the initial NAC meetings, the three ex officio members turned over said responsibility to
their representatives who were paid honoraria beginning 12 December 1994. However, on 15 October 1997, NAC
resident auditor Eulalia disallowed on audit the payment of honoraria to these representatives amounting to P255,750
for the period 12 December 1994 to 27 June 1997, pursuant to Commission on Audit (COA) Memorandum 97-038. On
1 September 1998, the National Government Audit Office (NGAO) upheld the auditor's order and notices of
disallowance were subsequently issued to (1) Cesar Averilla, Department of National Defense [P 2,500.00]; (2)
Ramon Martinez, Department of National Defense [P73,750.00], (3) Cielito Mindaro, Department of Justice
[18,750.00]; (4) Purita Deynata, Department of Justice [P 62,000.00]; (5) Alberto Bernardo, Department of the Interior
And Local Government [P71,250.00]; (6) Stephen Villaflor, Department of the Interior and Local Government
[P26,250.00], and (7) Artemio Aspiras, Department of Justice [P 1,250.00]. Meanwhile, on 28 April 1999, the NAC
passed Administrative Order 2 (the new Implementing Rules and Regulations of Proclamation No. 347), which was
approved by then President Joseph Estrada on 19 October 1999. Section 1, Rule II thereof provides that the NAC
shall be composed of 7 members: (a) A Chairperson who shall be appointed by the President; (b) Three (3)
Commissioners who shall be appointed by the President; (c) Three (3) Ex-officio Members: (1) Secretary of Justice,
(2) Secretary of National Defense, (3) Secretary of the Interior and Local Government. The Administrative Order
further provided that the ex officio members may designate their representatives to the Commission. Said
Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law.
NAC thus invoked Administrative Order 2 in assailing before the COA the rulings of the resident auditor and the
NGAO disallowing payment of honoraria to the ex officio members' representatives, to no avail. Hence, on 14 March
2003, the NAC filed the petition for review. Hence, the petition for review sought to annul the two decisions of the COA
dated 26 July 2001 and 30 January 2003, affirming the 21 September 1998 ruling of the NGAO; which upheld Auditor
Ernesto C. Eulalia's order disallowing the payment of honoraria to the representatives of NAC's ex officio members,
per COA Memorandum 97-038.
Issue [1]: Whether there is legal basis to grant per diem, honoraria or any allowance whatsoever to the NAC ex officio
members' official representatives.
Held [1]: No. In Civil Liberties Union, the Court elucidated on the two constitutional prohibitions against holding
multiple positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph 2,
Section 7, Article IX-B on all government employees against holding multiple government offices, unless otherwise
allowed by law or the primary functions of their positions, and (2) the stricter prohibition under Section 13, Article VII
on the President and his official family from holding any other office, profession, business or financial interest, whether
government or private, unless allowed by the Constitution. The NAC ex officio members' representatives who were all
appointive officials with ranks below Assistant Secretary are covered by the two constitutional prohibitions. First, the
NAC ex officio members' representatives are not exempt from the general prohibition because there is no law or
administrative order creating a new office or position and authorizing additional compensation therefor. Sections 54
and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the
government and receiving additional or double compensation. RA 6758, the Salary Standardization Law, also bars the
receipt of such additional emolument. The representatives in fact assumed their responsibilities not by virtue of a new
appointment but by mere designation from the ex officio members who were themselves also designated as such.
Second, the ex officio members' representatives are also covered by the strict constitutional prohibition imposed on
the President and his official family. Again, in Civil Liberties Union, the Court held that cabinet secretaries, including
their deputies and assistants, who hold positions in ex officio capacities, are proscribed from receiving additional
compensation because their services are already paid for and covered by the compensation attached to their principal
offices. Thus, in the attendance of the NAC meetings, the ex officio members were not entitled to, and were in fact
prohibited from, collecting extra compensation, whether it was called per diem, honorarium, allowance or some other
euphemism. Such additional compensation is prohibited by the Constitution. Furthermore, in de la Cruz vs. COA and
Bitonio vs. COA, the Court upheld COA's disallowance of the payment of honoraria and per diems to the officers
concerned who sat as ex officio members or alternates. The agent, alternate or representative cannot have a better
right than his principal, the ex officio member. The laws, rules, prohibitions or restrictions that cover the ex officio
member apply with equal force to his representative. In short, since the ex officio member is prohibited from receiving
additional compensation for a position held in an ex officio capacity, so is his representative likewise restricted.
Issue [2]: Whether Section 1, Rule II of Administrative Order 2, providing that "The ex officio members may designate
their representatives to the Commission. Said Representatives shall be entitled to per diems, allowances, bonuses
and other benefits as may be authorized by law." can be the basis of the representatives' claim for per diem.
Held [2]: NO. First, the administrative order itself acknowledges that payment of allowances to the representatives
must be authorized by the law, that is, the Constitution, statutes and judicial decisions. However, the payment of such
allowances is not allowed, prohibited even. Second, the administrative order merely allows the ex officio members to
designate their representatives to NAC meetings but not to decide for them while attending such meetings. Thus,
although the administrative order does not preclude the representatives from attending the NAC meetings, they may
do so only as guests or witnesses to the proceedings. They cannot substitute for the ex officio members for purposes
of determining quorum, participating in deliberations and making decisions. Lastly, the Court disagrees with NAC's
position that the representatives are de facto officers and as such are entitled to allowances, pursuant to the
pronouncement in Civil Liberties Union. The representatives cannot be considered de facto officers because they
were not appointed but were merely designated to act as such. Furthermore, they are not entitled to something their
own principals are prohibited from receiving. Neither can they claim good faith, given the express prohibition of the
Constitution and the finality of our decision in Civil Liberties Union prior to their receipt of such allowances.
Digest: Tanada v. Tuvera (GR L-63915, 29 December 1986)
Posted by Berne Guerrero under (a) oas , digests

Tanada v. Tuvera (Resolution)
GR L-63915, 29 December 1986 (146 SCRA 446)
En Banc, Cruz (p) : 8 concurring
Facts: On 24 April 1985, the Court affirmed the necessity for the publication to the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no binding force and
effect. Decision was concurred only by 3 judges. Petitioners move for reconsideration / clarification of the decision on
various questions. Solicitor General avers that the motion is a request for advisory opinion. February Revolution took
place, which subsequently required the new Solicitor General to file a rejoinder on the issue (under Rule 3, Section 18
of the Rules of Court).
Issue: Whether publication is still required in light of the clause unless otherwise provided.
Held: The clause unless it is otherwise provided, in Article 2 of the Civil Code, refers to the date of effectivity and not
to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the
legislature may make the law effective immediately upon approval, or on any other date, without its previous
publication. The legislature may in its discretion provide that the usual fifteen-day period shall be shortened or
extended. Publication requirements applies to (1) all statutes, including those of local application and private laws; (2)
presidential decrees and executive orders promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or directly conferred by the Constitution; (3) Administrative
rules and regulations for the purpose of enforcing or implementing existing law pursuant also to a valid delegation; (4)
Charter of a city notwithstanding that it applies to only a portion of the national territory and directly affects only the
inhabitants of that place; (5) Monetary Board circulars to fill in the details of the Central Bank Act which that body is
supposed to enforce. Further, publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws.
The Supreme Court declared that all laws as above defined shall immediately upon their approval, or as soon
thereafter as possible, be published in full in the Official Gazette, to become effective only after 15 days from their
publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code.